Martin, Peter James ( 2014 )

ORIGINAL IOSOH
PD-1050-14
IN THE TEXAS COURT OF CRIMINAL APPEALS
COA 09-13-00180-CR,09-13-00181-CR,09-13-00182-CR,09-13-00183-CR
PETER JAMES MARTIN, Appellant, §
§ From the 221st Judicial District
v. § Court of Montgomery County, Texas
§ Cause Number 12-03-02604-CR
THE STATE OF TEXAS, Appellee, §
PETITION FOR DISCRETIONARY REVIEW
RECE
COURT OFCRIMINAL APPEALS
DEC 31 201*
Abe! Acosta, Clerk
FILED IN
COURT OF CRIMINAL APPEALS
DEC 31 2014
Abel Acosta, Clerk
PETER JAMES MARTIN
tdcj-cid #1846003
STILES UNIT 3060 FM 3514
BEAUMONT, TX 77705
ORAL ARGUMENT WAIVED
REQUEST FOR APPOINTMENT OF COUNSEL
(a) Identity of Judges, Parties and Lawyers
Judges: Honorable Lisa Michalk, Honorable Mary Anne Turner,
pre-trial proceedings all trial proceedings
207 W. Phillips 210 W. Davis, Suite 400,
Conroe, Texas 77301 Conroe, Texas 77301
Phone:(936)539-7808 Phone:(936)538-8174
Prosecutors: Mr. Robert Fryer, Ms. Joann Linzer,
SBOT #00798189 SBOT #24037255
pre-trial proceedings trial proceedings
Assistant District Attorney Assistant District Attorney
for Montgomery County Montgonery County
Ms. Amanda Lanning Mr. Lane Haygood
SBOT #24071514 SBOT #24066670
trial proceedings trial proceedings
Assistant District Attorney Assistant District Attorney
for Montgomery County for Montgomery County
Jason Larman, Mr. Bill Delmore,
SBN #24072468 SBN #05732400
appeal proceedings appeal proceedings
Assistant District Attorney Assistant District Attorney
for Montgomery County for Montgomery County
Mr. Brent Ligon 207 W. Phillips, 2nd Floor,
SBN #00796955 Conroe, Texas 77301
District Attorney Phone:(936)539-7800
for Montgomery County FAX: (936)788-8395
Defense Lawyers: Mr. Todd Ward, Mr. Walter Boyd Jr.,
SBOT #00797780 SBOT #02782000
pre-trial proceedings trial proceedings
DeGuerin and Dickson L.L.C. 202 Travis. Suite 208
1013 Preston Ave., 7th Floor Houston, Texas 77002
Houston, Texas 77002
(713)223-5959
Mr. Christopher Neal Allen, Mr. Jeremy D. Finch,
SBOT #24031816 SBOT #24052964
appeal proceedings appeal proceedings
Assistant District Attorney 300 W. Davis, Suite 450
for Mongomery County (!) Conroe, Texas 77301
(936)539-7800 Phone:(936)756-7297
Appellant: Mr. Peter James Martin, TDCJ-CID #1846003
Michael Unit of TDCJ-CID, 2664 FM 2054
Tennessee Colony, Texas 75886
Legal Assistant, Paul James Koumjian, Post-Conviction Issues
TDCJ-CID #1039181, Hughes Unit, Rt.2, Box 4400
Gatesville, Texas 76597
(b) Table of Contents
(aj Identity of Judges, Parties and Lawyers i
(b) Table of Contents ii
(c) Index to Authorities, Documents and Appendix Exhibits iii-iv
(d) Statement Regarding Oral Argument v
(e) Statement of the Case v
(f) Statement of the Procedural History vi-xi
(g) Grounds for Review One through Seven xii
(h) Arguments 1-13
1. APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY APPEAL COUNSEL'S
TOTAL DISREGARD IN THE APPELLANT'S BRIEF OF THE MAIN DEFENSES ARGUED
TO THE JURY AND THE COURT OF APPEALS NOT RULING ON THE MERITS OF
APPELLANT'S FILED COMPLAINTS REQUIRING A VACATE AND REMAND ORDER
A. Due Process 1
B. The Court of Appeals Abused It's Discretion By Not
Addressing the Merits of Appellant's Timely Filed
Complaints About Appeal Counsel 1-4
C. Appeal Counsel Had an Actual Conflict of Interest in
Representing Appellant, and Montgomery County Before,
During and After This Montgomery County Appeal 5-6
D. The Court of Appeals "Overruled" Decisions on the
Pro-Se Motion for Rehearing and En Banc Consideration,
Were an Abuse of Discretion, Requiring a Merits Review
of Appellant's Pro-Se Identified Constitutional Issues 6-9
2. TRIAL COUNSEL VIOLATED THE RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL BY EMPLOYING A STRATEGY OF POISENING THE JURY WITH APPELLANT'S
PRIOR CONVICTIONS DESPITE HIS NOT TESTIFYING DURING THE GUILT PHASE,
REQUIRING REVERSAL OF THE CONVICTIONS AND REMAND FOR A NEW TRIAL 9
3. TRIAL COUNSEL VIOLATED THE RIGHT TO EFFECTIVE ASSISTANCE OF •
COUNSEL BY OUTRAGEOUSLY FAILING TO EMPLOY STATE'S EVIDENCE OF "FRONT-
VIEW" LASER TEST BULLET TRAJECTORY PHOTO RESULTS TO PROVE THAT DEPUTY
AZWELL FALSELY TESTIFIED APPELLANT WAS DRIVING "DIRECTLY" AT HIM
WHEN HE SHOT AT APPELLANT AND TO PROVE CSI WRIGHT SUPPRESSED THE
"FRONT-VIEW" LASER TEST PHOTO'S EXISTENCE AND EXCULPATORY NATURE
CONTRARY TO DUE PROCESS, REQUIRING APPELLATE RELIEF AT THIS TIME 9-11
4. THE STATE VIOLATED DUE PROCESS BY PRESENTING FALSE TESTIMONY
THAT APPELLANT DROVE "DIRECTLY" AT DEPUTY AZWELL, SUPPRESSING THE
"FRONT-VIEW" LASER TEST PHOTO RESULTS IN TRIAL, AND BY FAILING TO
CORRECT THE FALSE TESTIMONY AND MISLEADING EVIDENCE WHEN IT APPEARED 11
5. THE COURT OF APPEALS ABUSED IT'S DISCRETION CONTRARY TO DUE
PROCESS, INTERESTS OF JUSTICE AND CASELAW BY NOT ORDERING THE STATE
TO RESPOND TO APPELLANT'S PRO-SE MOTIONS FOR REHEARING AND/OR EN
BANC CONSIDERATION UNDER TEXAS RULES OF APPELLATE PROCEDURE 47.1,49.2
11-13
(i) Prayer, Certificate of Service 14
n
(c) Index to Authorities, Documents and Appendix Exhibits
USCA 6 Right to Assistance of Counsel 4,9-11
USCA 14 Right to Due Process 1,4,6,8,9,11,12
Texas Rules of Appellate Procedure,
44.2(a) Reversible Constitutional Error v
44.4 Remedial Error of Trial Court 13
47.1 Written Opinions Requirements xi,3,7-9,11
49 Motion for Rehearing v
49.2 Responses, Motion for Rehearing 11,12
49.3 Decisions, Motion for Rehearing 11
66.3(c) Conflicting Decision Reason for Granting Review , v
66.3(f) Supervisory Authority Reason for Granting Review v,9,ll
68.2 Time to File Petition 11
Ex parte Adams,768 S.W.2d 281(Tex.Crim.App.1989) 12
Anders v. California,386 U.S.738(1967) 2,3
Bledsoe v. State,178 S.W.3d 824(Tex.Crim.App.2005) 3
Brown v. State,183 S.W.3d 728(Tex.App.-Hous[l Dist] 11-23-05 reh'g denied 1-4-05) 10
Brown v. State, 11-03-00253-CR, 2001 Tex.App.LEXIS 8479(Tex.App.-Eastland 10-28-04 pet refd)L0
Brown v. Miller,519 F3d 231(5th Cir.2008) 8,10
Carroll v. State,101 S.W.3d 454(Tex.Crim.App.2003) 11
CHC Honey Creek LLC v. Bexar Appraisal District,04-11-00354-CV,
2012 Tex.App.LEXIS 5458(Tex.App.-San Antonio 6-11-12 no pet) 12
Dobbs v. State,07-12-0376-CR,07-12-0377-CR,2013 Tex.App.3050(Tex.App.-
Amarillo 3-20-13),rehg ovrld, 2013 Tex.App.LEXIS 5786(5/9/13) 10
Draughton v. Dretke,427 F3d 286(5th Cir.2003) 10
Evitts v. Lucy,469 U.S.387(1985) 1,4
State v. Fury,186 S.W.3d 67(Tex.App.-Hous[l Dist]2005) 12
Garcia v. State,57 S.W.3d 436(Tex.Crim.App.2001) 1,3
Garrett v. State,749 S.W.2d 784(Tex.Crim.App.1988) 11
Jiminez v. Quarterman,129 S.Ct.681(2009) 2,3
Johnson v. State,172 S.W.3d 6(Tex.App.-Austin 2005) 4
LaPointe v. State,225 S.W.3d 513(Tex.Crim.App.2007) 13
Lewis v. State,402 S.W.3d 852(Tex.App.-Amarillo 2012), pet granted,
In re Lewis,2013 Tex.Crim.App.1526(10-23-13) 12
Light v. State,15 S.W.3d 104(Tex.Crim.App.2000) 8,11
Lyons v. McCotter,770 F2d 529(5th Cir.1985) 4
Martinez v. State,163 S.W.3d 88(Tex.App.-Amarillo 2004), appeal
after remand,163 S.W.3d 92(Tex.App.-Amarillo 2005 no pet.) 1,3,4
Michaelwicz v. State,186 S.W.3d 601(Tex.App.-Austin 2006 rehg ovrld, pet refd) 13
U.S. v. Miller,576 F3d 528(5th Cir.2009) 10
McKee v. State,2012 Tex.App.LEXIS 2421(Tex.App.-Dallas 3-28-12), pet
refd, In re KcKee,2013 Tex.Crim.App.LEXIS 166(1-30-13) 13
Perillo v. Johnson,205 F3d 775(5th Cir.2000) 5
Perkins v. State,902 S.W.2d 88(Tex.App.-El Paso 1995), supplemental
opinion,905 S.W.2d 452(Tex.App.-El Paso 1995 pet refd) 8,12
Reeves v. State, 03-03-00490-CR,2004 Tex.App.LEXIS 6815(Tex.App.-San Antonio 2004 pet refd) 12
Robertson v. State,187 S.W.3d 475(Tex.Crim.App.2006), on remand,
Robertson v. State,214 S.W.3d 665(Tex.App.-Waco 2007 no pet) 4
Robinson v. State,16 S.W.3d 808(Tex.Crim.App.2000) 3,11
Rochelle v. State,791 S.W.2d 121(Tex.Crim.App.1990) 3,7,8,12
Rodriguez v. State,129 S.W.3d 551(Tex.App.-Hous[l Dist]2004 pet refd) 1,4
Rudd v. State,616 S.W.2d 623(Tex.Crim.App.1981) 1,3,4
in
In re Schulman,252 S.W.3d 403(Tex.Crim.App.2008) 3
Sims v. State,99 S.W.3d 600(Tex.Crim.App.2003) 8,9,12
Sotelo v. State,913 S.W.2d 507(Tex.Crim.App.1995) 7,8,11,12
Strickland v. Washington,466 U.S. 668(1984) 4,10
Stome v. State,17 S.W.3d 348(Tex.App.-Corpus Christi 2000) 4
Spence v. State,758 S.W.2d 597(Tex.Crim.App.1988) 13
Tassin v. Cain,517 F3d 770(5th Cir.200a') 12
Vasquez v. State,67 S.W.3d 229(Tex.Crim.App.2002) 12
Wheat v. U.S.,486 U.S.153(1988) 5
Whiddon v. State, 10-06-00085-CR,2007 Tex.App.LEXIS 916(Tex.Acp.-Waco 2007) 10
Hanby's Annotated, Texas Rules of Appellate Procedure(West's 2011 ed.) 3,11
12/10/13 filed Appellant's Brief vii,l
02/10/14 filed State's Brief 1,2
03/17/14 filed Pro-Motion Objecting to Counsel's Brief, Appx.49-52, viii,xi.i,2,3
05/21/14 Memorandum Opinion, Appx.33-41, 2,4,9
06/13/14 filed Original Pro-Se Motion for Rehearing, 2,6,7
06/26/14 COA Denial of Pro-Se Motion to Exceed Page Limits, Appx.46, 6
07/21/14 filed Amended Motion for Rehearing, 2,3,6,7
07/24/14 COA "Overruled" Without Written Opinion Decision, Appx.45, xii,7
Affidavit of Trial Counsel, Appx.29-30, yiii,xii,2
08/07/14 filed Pro-Se Motion for En Banc Consideration, 2,7
08/14/14 filed Pro-Se Motion to Abate Appeal and Remand to Trial Court, 2
09/04/14 COA "Overruled" Without Written Opinion Decision, Appx.42> _7
"Front-View" and "Side-View" Laser test Photo Results Evidence, Appx.31-32, *ibid. On July 24,2014,
the Court of Appeals "overruled" without written opinion Appellant's Amended
Motion for Rehearing. Appx.45. , Presumably, the Court of Appeals did not con
sider the merits of any issue Appellant raised in the amended motion. Rochelle
v. State,791 S.W.2d 121,124(Tex.Crim.App.1990)[cited in Hanby's, Texas Rules
of Appellate Procedure, Annotated,204(West 2011 ed.)].
1T16(1) On August 7,2014 Appellant timely filed a pro-se Motion for
En Banc Consideration of the panel decision to "overrule" the Amended Motion
for Rehearing, which itself was "overruled" on September 4,2014.Appx. 42 .
This motion reasserted the motion for rehearing's grounds for relief, but focus-
sed upon the suppressed "front-view" laser test photo showing Deputy Azwell
shot at Appellant from the side of his car and not from the front of the car
as Deputy Azwell falsely testified to in trial and bullet trajectory expert
CSI Wright suppressed during his testimony and the State knowingly failed to
correct when it appeared in trial in violation of Due Process.
(2) On August 14,2014 Appellant served a pro-se Motion to Abate
Appeal and Remand to the Trial Court for Fact Findings regarding his submitted
"front-view" laser test photo evidence undisclosed or suppressed in his trial,
for authentication, and a determination of it's implications for exonerative
purposes in the count I aggravated threat of a public servant by use of a deadly
weapon motor vehicle conviction and impeachment purposes for the counts I-III
charges and convictions. However, the Beaumont Court of Appeals Clerk's office
merely "received" this motion but did not file it so no decision was ever made
by the Court on it. This motion argued Deputy Azwell's perjorious motive for
falsely testifying was to "cover-up" his use of excessive force in shooting
Appellant in the chest through the side passenger window of Appellant's car
in order to arrest him while fleeing, and how this front-view laser test photo
indisputably shows the only shot the State argued came from the front of this
Appellant's car which went into the front hood clearly came from 80°-85° to
the side of Appellant's car, proving Deputy Azwell falsely testified he was
in front of Appellant's car when he commenced shooting at Appellant, and CSI
Wright suppressed the fact the laser test photos showed Deputy Azwell shot
into the front hood clearly from the side of Appellant's car. Relevant factual
findings were requested under Texas Rule of Appellate Procedure 44.4, LaPointe
v. State,225 S.W.3d 513,521-23 & n.9(Tex.Crim.App.2007)(holding Rule 44.4 "is
designed to create a new record ... The key to Rule 44.4 is that there must
be an error that the appellate court can correct."), Spence v. State,758 S.W.2d
597,599-600(Tex.Crim.App.1988)(holding it is error to exclude the testimony
of the lead prosecutor, which would "obviously be particularly informative
on the deliberateness of the State's actions" when it is relevant to "the very
heart of the Due Process claim", abating and remanding for offer of proof or
to perfect a previously thwarted Bill of Exception) and Michaelwicz v. State,186
S.W.3d 601,613-14(Tex.App.-Austin 2006 reh'g ovr'Id,pet.refd,citations omitted)
The Court of Appeals made no decision regarding this motion to date.
(3) A duplicate Motion to Abate Appeal and Remand to the trial
Court for Fact Findings was filed in this Court under Case No.PD-1050-14 and
summarily "bEWED" without written opinion, presumably-not on it's merits since
the Beaumont Court of Appeals did not rule upon it in the first instance.
H17 This Court GRANTED previous motions for time extensions to file
the instant petition for discretionary review until October 24,2014, and again
until December 2,2014. On November 4,2014 the State's agent prison officials
confiscated from out of the incoming mail Appellant's completed copies of his
petition, exhibits and related documents to be filed in the instant case, by
claiming it was "written contraband", without citing any suspected criminal
or TDCJ rule offense as the basis for this confiscation event. Appellant then
informed this Court of these facts and this Court GRANTED another time extension
making the new deadline January 2,2015. As of December 15,2014 these PDR docu
ments were not returned yet, so Appellant filed another motion with the Court
and requested a summary ORDER to the State to return the confiscated PDR docu
ments to the intended recipient to protect this Court's jurisdiction to decide
the merits of this case.
xi
(g) Grounds for Review
1. APPEAL COUNSEL VIOLATED DUE PROCESS BY NOT ARGUING ANY MAJOR DEFENSE ISSUE
ARGUED TO THE. JURY IN FAVOR OF PRESENTING A SINGLE, DEFICIENT, MERITLESS
MINOR, MISTRIAL RULING ARGUMENT, OVER APPELLANT'S RECORD FILED OBJECTIONS:
post.,1-4 - see, 12/10/13 Appellant's Brief; 02-10-14 State's Brief; Appx.
29-30(trial counsel's affidavit),49-52(appellant's record filed objections)
and see, 7/21/14 Am.Mot.for Reh'g,4,13; Appx.45f(CCA "Overruled" decision);
"Supplemental Brief: the Pro-Se Identified Reversible Errors", 1-4 ("Supp.Brief")
2. APPEAL COUNSEL VIOLATED DUE PROCESS BY HAVING A CONFLICT OF INTERESTS
RESULTING IN HIS DISREGARD OF PERSUASIVE ALTERNATIVE DEFENSE APPEAL ISSUES;
post.,5-6 - see 7/21/14 Am.Mot.for Reh'g,4,14-15; Appx.45(COA "Overruled"
decision); Supp.Brief,4-5
3. THE' COURT OF APPEALS "OVERRULED" W/O WRITTEN OPINION DECISIONS ON THE
PRO-SE MOTIONS FOR REHEARING AND EN BANC CONSIDERATION BELOW, WERE AN
ABUSE OF DISCRETION GIVEN THE VIABILITY OF APPELLANT'A PRO-SE IDENTIFIED
ARGUMENTS AND AUTHORITIES, REQUIRING A VACATE AND REMAND TO THE COURT
OF APPEALS UNDER USCA 14, AND TEX.R.APP.P.47.1,49 & 66.3(f); post.,6-9
see, 7/21/14 Am.Mot.for Reh'g; 8/7/14 Mot.for En Banc Consideration; Motion
to Abate and Remand...; Appx.42,45(COA "Overruled" decisions); Supp.Brief,
1-34(demonstrating viability of pro-se identified reversible errors)
4. TRIAL COUNSEL VIOLATED USCA 6 BY EMPLOYING A STRATEGY OF POISENING THE
JURY WITH KNOWLEDGE OF APPELLANT'S PRIOR CONVICTIONS DURING THE GUILT
PHASE DESPITE. APPELLANT'S NEVER TESTIFYING IN THE GUILT PHASE, REQUIRING
REVERSAL AND REMAND OF ALL FOUR CONVICTIONS ; post.,4,9; Am.Mot.for Rehg,13
(citing R.R. ,2, pp. 14-18] ; Supp.Brief,3 117
5. THE COURT OF APPEALS ABUSED ITS DISCRETION CONTRARY TO DUE PROCESS, INTER
ESTS OF JUSTICE AND TEX.R.APP.P.44.2,49.2 BY NOT ORDERING THE STATE TO
RESPOND TO THE PRO-SE IDENTIFIED VIABLE CONSTITUTIONAL AND PROCEDURAL
ARGUMENTS: post.,11-13; 6/13/14 Orig.Mot.for Reh'g,1-57; 7/21/14 Am.Mot.
for Reh'g,1-16; 7/7/14 Mot.for En Banc Cons.; Appx.42,45,46(COA decisions
overruling motions for rehearing and en banc consideration and denying
exceeding page limits); Supp.Brief,27A
6. TRIAL COUNSEL VIOLATED USCA 6 BY OUTRAGEOUSLY FAILING TO EMPLOY THE STATE'S
"FRONT-VIEW" LASER TEST PHOTO EVIDENCE IN TRIAL TO PROVE DEPUTY AZWELL
FALSELY TESTIFIED APPELLANT WAS DRIVING "DIRECTLY" AT HIM WHEN SHOOTING
APPELLANT AND CSI WRIGHT SUPPRESSED THIS SPECIFIC EVIDENCE DURING TRIAL,
BECAUSE IT INDISPUTABLY PROVES THE DEPUTY SHOT AT APPELLANT FROM THE SIDE
OF THE CAR PROVING APPELLANT'S COUNT I INNOCENCE: post.,8-10; Appx.1-5
(testimony of Deputy Azwell and CSI Wright),7-9(State's and Defense's
closing jury arguments); R.R.,v.5,86-90; R.R.,v.6,14-21,155-171; R.R.,v.9,
82-83,96-112,114-16; Appx.31(suppressed "front-view" laser test photo),
32,(State's filed "side view" laser test photo exhibit); Appx.38-39, Mem.
Pp.,6-7(COA finds only Deputy Azwell's testimony supports the count I
conviction based on appellant driving "directly" at him); Supp.Brief,28-29 117
7. THE STATE PRESENTED FALSE TESTIMONY, SUPPRESSED EVIDENCE AND KNOWINGLY
FAILED TO CORRECT SAME WHEN IT APPEARED.; see Ground 6 above's record
cites; post.,11; Supp.Brief,20-31
xn
(h) Arguments
1. APPELLANT'S RIGHTS TO DUE PROCESS WERE VIOLATED BY APPEAL COUNSEL'S
TOTAL DISREGARD IN THE APPELLANT'S BRIEF OF THE DEFENSES ARGUED IN
TRIAL TO THE JURY AND THE COURT OF APPEALS OVERLOOKING OF APPELLANT'S
TIMELY COMPLAINTS ON THE ISSUE, REQUIRING A VACATE AND REMAND ORDER
A. Due Process
Appeal counsel violated Appellant's rights to effective assistance of
appeal counsel contrary to Due Process, by not arguing the primary issues trial
counsel argued to the jury in this trial, which was an outrageous relinquish
ment of appeal counsel's duty to an indigent appellant represented by appointed
appeal counsel on direct appeal, forcing the instant Appellant to pursue pro
se motions for rehearings and en banc consideration after the Court of Appeals
renderred its predictable judgements against him. Evitts v. Lucy,469 U.S.387,396
(1985)(right to effective assistance of counsel, on state direct appeal, is
grounded in USCA 14's Due Process Clause); Garcia v. State,57 S.W.3d 436,440(Tex
Crim.App.2001)(approving of resolving ineffective assistance of counsel claims,
during direct appeal, when no competent attorney would have engaged in such
record based •:-\$.f!'ficient performance of counsel); Rudd v. State,616 S.W.2d 623,
624-25(Tex.Crim.App.1981)(approving of reviewing pro-se complaints of appeal
counsel's appellant's brief, in "the interests of justice"); Martinez v. State,
163 S.W.3d 88,89-91(Tex.App.-Amarillo 2004)(applying Rudd, to grant procedural
relief),appeal after remand, 163 S.W.3d 92(Tex.App.-Amarillo 2005)(granting sub
stantive relief, reversing conviction, remanding for new trial); Rodriguez v.
State, 129 S.W.3d 551,562-64(Tex. App.-Hous. [1 Dist. ]2004, reh'g denied, PDR refd)
(.after appointed appeal counsel argued numerous meritless issues obtaining
an affirmance of aggravated robbery conviction and 25 yr. sentence, this writer
assisted pro-se this appellant, filing motion for prehearing, arguing appeal
counsel was ineffective for .not arguing no evidence appellant knew his partner
had a concealed weapon on him when he entered or exited the convenience store,
rev'g and acquitting for legal insufficiency w/o ruling on ineffective assist
ance ,of appeal counsel claim).
B. The Court'of-..Appeals Abused It Vs Discretion By .Not Addressing
the Merits of Appellant's Timely Filed Complaints About Counsel
The Court of Appeals did not-respond to the merits of Appellant's timely,
pre-submission, March 17,2012 filed complaints about appeal counsel's incompet
ent, meritless, boilerplate appeal brief that ignored major trial issues.
See supra., Procedural History,§(f) ,11119-11. Compare, 12/10/)3 filed Appellant's
Brief, with, 02/10/14 filed State's Brief. Appeal counsel argued in one issue
the trial court erred by failing to grant a mistrial when the State referred
to Appellant's prior convictions unrelated to the current matter while cross
examining a defense witness. The State's response was there was no error because
trial counsel did not object to the State's having previously introduced police
interview CD video evidence • of Appellant admitting to police when the offenses
were committed he was "on drugs" and "on thirty years parole", and also that
trial counsel had already informed the entire jury pool during voir dire that
Appellant had a "rap sheet" of "prior, convictions" which likely even trial
counsel would not be able to overcome. See 02/10/14 filed State's Brief,5-7.
On March 17,2014 Appellant timely filed a pro-se motion complaining about
appeal counsel's "only argument" omitting major trial defense issues that should
have been argued. See Appx.49-52 - 03-17-14 filed Pro-Se Motion,l-4(w/att'd,
clerk stamped copy of Appellant's letter to appeal counsel). Appellant complain
ed about appeal counsel's refusal to provide him with copies of the appellate
record to actively assist appeal counsel with thus preventing Appellant from
receiving a meaningful appeal by being unable to point to error in the trial
record, smd appeal counsel's "non-meritorious argument that the State elicited
Appellant's prior convictions ... without even discussing — defense counsel
employed this tactic by inviting such error — mak[ing] appeal counsel's effort
seem like the boilerplate work of hacks — like the equivalent of an Anders
brief [see, Jiminez v. Quarterman,129 S.Ct.681,683-87(2009) for discussion
of direct appeal "Anders-briefs"] without the constitutionally protected right
to file a pro-se brief — which may be the point" of appeal.counsel's invidious
strategy in the case at bar. id.; see also, related pro-se motion's objections,
filed April 23,2012, April 30,2012 and May 8,2012. "Appeal counsel Mr. Allen
refused to present and argue anything for [Appellant] Martin at his request'.
See, 07/21/14 filed Amended Motion for Rehearing,4
Trial Counsel Mr. Boyd executed an affidavit declaring he called and went
to see appeal counsel Mr. Allen many times' but was disregarded; Mr. Allen "did
not even have the good sense or courtesy or even the interest of his client
to consult" with Mr. Boyd, and Mr. Allen had "no excuse for not raising some
if not all of the errors in trial" Mr. Boyd preserved. See Appx.29-30, Affidavit
of Walter Boyd,1-2.
On May 21,2014 the Court of Appeals affirmed the trial court's judgements,
rejecting appeal counsel's single issue erroneous mistrial ruling claim, by
adopting one of two State's rebuttal arguments, that trial counsel failed to
object to previously introduced State CD video evidence showing Appellant ad
mitting to police at the time of the offenses he was "on drugs" and "on thirty
years parole", making the State's later raising of these issues "cumulative"
hence "not prejudicial". See Appx.36-7, Mem.Op.,4-5. The Court did not discuss
the State's other argument's merits, that trial counsel essentially poisened
the entire jury pool by admitting during voir dire that Appellant had a "rap
sheet" of "prior convictions" suggesting, as the State put it, "a less than
perfect past" which is an understatement. 02/10/14 filed State's Brief,6-7,9. (
Appellant briefed the issues he sought to have reviewed on appeal, in
his 6/13/14 filed 57 page original Motion for Rehearing, July 21,2014 filed
15 page Amended Motion for Rehearing, his 8/7/14 filed Motion for En Banc
Consideration, and his 8/14/14 received Motion to Abate Appeal and Remand to
the Trial Court, which the court of appeals denied the original motion for
rehearing for being overlength on 6/26/14, "overruled" without written opinion
the amended motion for rehearing on 7/24/14, "overruled" without written opinion
the motion for en banc consideration on 9/4/14, and received but never ruled
at all on the motion to abate appeal and remand to the trial court. A duplicate
motion to abate appeal and remand to the trial court was filed in the TCCA
under Case No.PD-1050-14 and "DENIED" without written opinion, presumably on
the basis of the court of appeals never filing and ruling on it's duplicate
filed motion.
Arguments
The Court of Appeals abused it's discretion by failing to conduct a hearing
for Appellant when he first raised the issues of appeal counsel's deficient
performance in Appellant's 3/17/14 filed motion. The Texas Court of Criminal
Appeals and the courts of appeals have uniformly held a court of appeals will
consider pro-se contentions raised in a brief on appeal, even when represented
by an appeal counsel who has already filed a brief, in the interests of justice.
Rudd v. State,616 S.W.2d 623-624-25(Tex.Crim.App.1981); Martinez v. State,163
S.W.3d 88(Tex.App.-Amarillo 2004), appeal after remand, Martinez v. State,163
S.W.3d 92(Tex.App.-Amarillo 2005). In Martinez as in the case at bar, the appel
lant timely complained his appeal counsel had omitted issues that he should
have brought up in the appellant's brief, denying him effective assistance
of counsel on first appeal, requested the appeal be abated and that a copy
"of his transcripts" be sent to him. The Amarillo court of appeals, contrary
to the instant case, issued an abate and remand order directing the trial court
to conduct a hearing as to whether the appellant would be allowed to proceed
with his appeal pro-se, with another appeal lawyer or the same appeal lawyer,
id.,163 S.W.3d @ 89-91[applying, Rudd,supra.].
In the case at bar, Appellant also timely filed his identical Martinez
complaint in the Beaumont Court of Appeals on 3/17/14, also asking for copies
of his trial transcripts, and similarly asking to abate and remand the appeal
to a trial court for fact findings. Indeed, this Appellant went one step further
and timely filed extensive motions for rehearing and en banc consideration,
expressly outlining the substance of the pro-se arguments he would raise in
the Court of Appeals pro-se or otherwise if allowed to. These motions clearly
raise substantial arguments and supporting authorities implicating Due Process
concerns, the interests of justice and whether Appellant received a meaningful
appeal with the effective assistance of counsel. Robinson v. State,16 S.W.3d
808,813(Tex.Crim.App.2000)(vacating and remanding to court of appeals for con
sideration in the first instance of ineffective asistance of counsel claim);
accord, Garcia,57 S.W.3d @ 440. Different from Martinez, it appears that the
Beaumont Court of Appeals did not recognize any of Appellant's pro-se argument's
filed below, by it's "overruled" without written opinion decisions. See, Hanby's
Annotated, Texas Rules of Appellate Procedure, 204(West 2011)[citing, Rochelle
v. State,791 S.W.2d 121,124(Tex.Crim.App.1990)]. Once the TCCA recognizes the
underlying merits to Appellant's pro-se arguments and authorities, the Martinez
result should necessarily follow with a vacate and remand order directing the
Court of Appeals below to follow Martinez,supra.
Supporting this result is the fact that Appellant raised his right to
represent himself pro-se in the Court of Appeals, which went unaddressed. This
probably violated Tex.R.App.P.47.1 requiring a vacate and remand order itself.
Bledsoe v. State,178 S.W.3d 824,827-28(Tex.Crim.App.2005). In any case this is
"structural error", precluding harmless error analysis, and requiring •:automatic
reversal. Jiminez,129 U.S. @ 683-87; Anders,386 U.S.738; In re Schulman,252
S.W.3d 403,408(Tex.Crim.App.2008); Bledsoe,178 S.W.3d @ 826-28; Martinez, 163
S.W.3d @ 89-91. This alone requires a vacate and remand result.
Ultimately supporting reaching this result is the substance of appeal
counsel's single issue appeal argument, compared to the State's easily accom
plished further research ANY competent appeal counsel could and should have
done himself, reveals a clearly unsound appeal argument strategy being employed.
Appeal counsel's facts supporting his meritless mistrial ruling argument,
together with the easily accomplished additional research on the issue done
by the State, could and should have been combined to argue trial counsel employ
ed a clearly unsound trial strategy of revealing to the entire jury pool during
voir dire deliberately before a decision had even been made whether to allow
Appellant to testify (he ultimately did not testify in the guilt-innocence phase)
and by not objecting to the State's putting on CD video evidence showing the
Appellant admitting to police he was on thirty years parole a fact finding
already made. Appx.36-37 - Mem.Pp.,4-5. Now, this clearly unsound trial strategy
is independantly ineffective assistance of counsel, even without considering
the totality of other circumstances involved that contributed to trial counsel's
deficient performance on the record. Thus, by also now adopting as fact that
trial counsel poisened the entire jury pool with knowledge of Appellant's prior
convictions, by the time of the jury panel's hearing from appellant he was
on parole for thirty years, without objection from trial counsel, trial counsels
voir dire announcement to the trial court that he had a "strategy" for doing
this, proves itself to be clearly unsound. It was outrageous for trial counsel
to invite the jury to know Appellant had prior convictions, then not even
use . Appellant's testimony in the guilt phase at all, revealing a caselaw certi
fied showing of a meritorious record-based, direct-appeal argued, ineffective
assistance of counsel claim. Robertson v. State,187 S.W.3d 475(Tex.Crim.App.
2006)(affg deficient performance finding, remanding for prejudice analysis),
on remand, Robertson v. State,214 S.W.3d 665,667-68(Tex.App.-Waco 2007 no pet.)
(IAC holding finding the jury heard evidence about two prior convictions "that
the State would not have been able to develops without Robertson's counsel
'opening the door' to such testimony.") Stone v. State,17 S.W.3d 348,352-53(Tex.
App.-Corpus Christi 2000)(IAC holding, finding trial record sufficient to show
IAC based on trial counsel's offering of prior conviction that would not have
come in otherwise, relying on record from vior dire and a bench conference)
Johnson v. State,172 S.W.3d 6, (Tex.App.-Austin 2005)(IAC holding where
trial counsel's failure to object to admissability of video evidence was factor)
In the case at bar, the Appellant suffered the same, if not moreso, deficient
performance of counsel. Moreover, the Appellant here suffered more severe pre
judice than in these cases, given the jury found him guilty as charged in four
felony counts, and then the jury issued the maximum sentences allowed by the
trial court of three life sentences, and one twenty year sentence. Therefore,
all four convictions and sentences must be reversed and remanded to the trial
court for a new trial. Strickland v. Washington,466 U.S.668,694(1984); Robertson,
214 S.W.3d @ 668-69; Stone,17 S.W.3d @ 352-53; Lyons v. McCotter,770 F2d 529,534
(5th Cir.1985)[quoting, Nero,597 F2d @ 994].
In sum, because appeal counsel disregarded all major trial issues in the
appellant's brief in favor of a non-meritorious single issue in itself a case
of deficient performance on the recerd, because Appellant timely complained
to the Court of Appeals on the record of being denied effective assistance
of counsel on appeal, because Appellant indicated he sought to represent himself
on appeal, and because the Court of Appeals did not rule on the merits of any
complaint or argument Appellant presented to the Court of Appeals, the interests
of justice 3»*3 Due Process concerns require this case to granted PDR, vacating
the judgements of the Court of Appeals, and remanding to that Court for an
application of Martinez,supra. to this Appellant's appeal, i.e., directing
a Court of Appeals' abate and remand to the trial court order for fact findings
on whether Appellant should proceed with a new appeal pro-se or with assistance
of a new appeal counsel. USCA 14; Evitts,469 U.S. @ 396; Martinez,163 S.W.3d
@ 89-91(applying, Rudd,616 S.W.2d @ 624-25); accord, Rodriguez,supra.
O Appeal Counsel Had an Actual Conflict of Interests in Representing
Appellant, ar>d'.-Mtffmcpmery County Before, During and After the Appeal
Facts
Attorney Mr. Christopher Neal Allen was appointed as appeal counsel due
to Appellant's indigency. OR.,235(notice of appeal signed by Mr. Allen); R.R.,
v.l3,pp.5-9,13,18-20(trial judge states to trial counsel she is going to appoint
Mr. Allen as appeal counsel); R.R.,v.l4,pp.21,71(trial judge appoints Mr. Allen
as appeal counsel during motion for new trial); and see, Appx. - 11/01/13
Order (Beaumont court order is directed only to Mr. Allen). According to the
2012 and 2014 Texas State Bar Directories, in 2010 Mr. Allen was an assistant
county attroney for Montgomery County, and in 2014 Mr. Allen was an assistant
district attorney for Montgomery County. Montgomery County is the political
subdivision of Texas that brought the instant felony prosecutions in this case.
Mr. Allen filed his appellant's brief on December 10,2013, nominally co-authored
by attorney Jeremy Finch, apparently for the purpose of staving off any inde
pendent official inquiry into Mr. Allen's apparent conflict of interests given
his extensive and significant prior and subsequent representation of Montgomery
County as county and district attorneys. On this record, Mr. Allen never recused
or removed himself from representing the Appellant at any point in this appeal,
raising the spector of Mr. Allen representing both the prosecution inUtoitgomery
County as assistant district attorney, and the Appellant as defense appeal
counsel, from the start of 301# through the case's submission on March 31,2014,
up to the case's affirmance on May 17,2014..
Argument
When confronted with possible attorney conflicts of interests, a criminal
court must take adequate steps to ensure the defendant receives a fair trial,
or in the case at bar a fair appeal, which if not respected requires reversal
of conviction. Wheat v. U.S.,486 U.S.153,160-62(1988). The U.S. Constitution
confers a right to effective assistance of conflict-free counsel. Perillo v.
Johnson,205 F3d 775(5th Cir.2000). An !!actual conflict" exists when defense
counsel is compelled to compromise his duty of loyalty or zealous representation
of the accused, by choosing between or blending divergent or competing inter
ests of his client, id. @ 781. An "adverse effect" is established by evidence
that a plausible alternative defense strategy or tactic could have been pursued
but was not, requiring "prejudice" to the appellant to be presumed, id. @ 781-82
Where defense counsel's prior representation involves a formal and substantial
attorney-client relationship, a finding of "actual conflict" is more likely.
The question turns on whether the character and extensiveness of the prior
representation was such that counsel was prevented by his competing interest
in the welfare of the prior client, from vigorously promoting the welfare of
the current client, id. @ 799. In the case at bar, it is argued that the record
shows Mr. Allen "nefariously chose to compromise his efforts" by throwing this
appeal to the lions, in favor of his main employer in life Montgomery County.
Clearly, Mr. Allen has an extensive and formal attorney-client relation
ship with ffentgomery County, before, during and after this appeal was adjudi
cated. Even assuming Mr. Allen was not representing Montgomery County during
2013, this record raises the neferious inference that Montgomery County rewarded
Mr. Allen after throwing this case to the lions, by promoting him from assist
ant county attorney to assistant district attorney. Outrageously, Mr. Allen
did not withdraw from the appeal but continued to remain as appointed aqp^-sl
in 2014 while he was an assistant district attorney, through the appeal's sub
missions on March 31,2014 and affirmance decision on May 21,2014. Had ANY court
official told Appellant he was being appointed as appeal counsel a Montgomery
County criminal attorney whose main client in life was Montgomery County, this
Appellant would have objected on the record. •Butj.Montgomery County officials
kept Appellant in the dark about Mr. Allen's divided loyalties, and probably
for furthering the chances of obtaining a affirmance of Appellant's convictions.
There can be no doubt that Mr. Allen deliberately lost this appeal, when you
compare trial counsel's affidavit declaring Mr. Allen failed to pursue ANY
trial defense issues he preserved on the record and Appellant's pro-se motions
for rehearing and en banc consideration arguable issues that should have been
presented on appeal, with Mr. Allen's single issue, meritless, boilerplate
appeal argument. This shows plausible alternative defense appeal arguments
that could have been presented but were not, requiring constitutional prejudice
to be presumed. The unjust, nebulous inference is that Mr. Allen chose Mont
gomery County over this Appellant, in crafting his appellant's brief and/or
in the manner in which he represented Appellant in this appeal, adversely effect
ing (if not totally negating) Appellant's Due Process rights to effective assis-
ance of conflict free counsel on direct appeal and to a meaningful appeal that
reviewed HIS trial court defenses and strategies.
Therefore, Due Process concerns, and the interests of justice, require
this Court to grant Appellant an opportunity to be heard on the merits of his
appeal arguments and authorities in a new direct appeal proceeding, by a return
to the Beaumont Court of Appeals for further proceedings,: with rebriefing and
such other relief as is required by the Court. USCA 14.
0. The Court of Appeals' "Overruled" Decisions on the Pro-Se Motions
for Rehearings and for En Banc Consideration, Were an Abuse of
Discretion, Requiring a Merits Review of the Pro-Se Issues
Facts
On June 13,2014 Appellant timely filed a pro-se 57 page Motion for Rehear
ing and Motion to Exceed the Page limit, but on June 26,2014 the Court of Ap
peals DENIED the motion to exceed page limits and sua sponte extended the time
limits for filing motion for rehearing until July 21,2014. Appx.46. in
this original motion for rehearing, the following issues were raised:
(1) the counts I and II convictions violated the Double Jeopardy prohibit
ion against multiple punishments, for the same continuous act of evasive driv
ing at issue, requiring the count II conviction to be vacated;
(2) the count III conviction is based on legally insufficient evidence
any roadside found "syringes" were "related to the offense" of "possession
of a controlled substance" and/or were "affirmatively linked" to Appellant,
requiring the count III conviction to be reversed and renderred an acquittal;
(3) the count I conviction is based on legally insufficient evidence
of Appellant's use of a vehicle to "threaten" Deputy O Azwell, based on the
deputy's false testimony that Appellant drove directly at the deputy as proven
by the previously undisclosed "front-view" laser test photos submitted with
this appeal showing the deputy shot at Appellant at all times from the side
of Appellant's car, requiring the conviction to be reversed and an acquittal;
(4) the count II conviction is based on legally insufficient evidence
of Appellant's use of his vehicle as a "deadly weapon", requiring deletion
of the deadly weapon affirmative finding from the trial court's judgement;
(5) the court I conviction is based on legally insufficient evidence
of Deputy Azwell lawfully discharging his duty to arrest, either based on his
trial testimony of jumping in front of Appellant's already moving car to shoot
Appellant and jumping out the way again in 2 seconds, or falsely testifying
Appellant was driving directly at him when he shot at Appellant proven by pre
viously suppressed State's "front-view" laser test photo evidence indisputably
proving Deputy Azwell shot at Appellant at all times from the side of his car,
requiring reversal of conviction and acquittal; and,
(6) five specific issues of ineffective assistance of trial and appeal
counsel contrary to USCA 6 & 14, requiring reversal of all convictions and
remand for a new trial on all counts.
See, 6/23/13 filed Original Motion for Rehearing,1-57
On July 21,2014 Appellant filed his necessarily truncated 15 page version
of his arguments and authorities in an Amended Motion for Rehearing, forced
by the Court's decision to deny his motion to exceed the page limits to jettison
his Double Jeopardy claims and severely condensing his remaining arguments.
On July 24,2014 the Court of Appeals "overruled" without written opinion the
Appellant's Pro-Se Amended Motion for Rehearing. Appx.45 . Additionally, the
Appellant also filed a Pro-Se Motion for En Banc Consideration, essentially
reasserting his rehearing arguments but focussing upon Deputy Azwell's having
fals<% testified in trial to cause his count I conviction, acting in concert
with police and prosecutorial suppression of "front-view" laser test photos
that indisputably prove the perjury and suppression of evidence. On September
4,2014, the Court of Appeals "overruled" without written opinion the Appellant's
Pro-Se Motion for En Banc Consideration. Appx. 42. - As a matter of law, the
Court of Appeals' decisions on the motions for rehearing and en banc considera
tion, did not consider the merits of any issue Appellant raised pro-se. See,
Rochelle v. State,791 S.W.2d 121,124-25(Tex.Crim.App.1990). ' "
Argument •_.--•
In the case at bar, Appellant is entitled to return to the Court of Appeals
for an actual decision on the merits of the issues he tried to raise pro-se
below under Tex.R.App.P.47.1 ("The court of appeals must hand down a written
opinion that is as brief as practicable but that addresses every issue raised
and necessary to final disposition of the appeal."). In Sotelo v. State,913
S.W.2d 507(Tex.Crim.App.1995) the TCCA distinguished Rochelle,supra, as a case
where nothing prevented movant from arguing in it's brief on original submission
his rehearing claim, noting in Soteldte case at the time of original submission
to the court of appeals there was no justiciable claim to assert and the motion
for rehearing was thus the "earliest opportunity" he had to raise his claim,
under the facts of Sotelo's case. id. @ 509. The TCCA held the denied without
written opinion decision did not address the merits of the claim therein, the
complaint about the propriety of that decision was properly preserved in a
motion for rehearing or a petition for discretionary review, the ."viable"
constitutional claim was incorrectly not considered by the court of appeals,
and issued a vacate and remand order to the court of appeals for a decision
on the merits in the first instance, id. @ 508-10. Sotelo applied the predecces-
sor to Rule 47.1 of Tex.R.App..90(a). Sotelo, @ 509. The. language of "issue
raised and necessary to final disposition of the appeal" is identical. Hence the
Sotelo result should occur in the instant Appellant's case.
Rule 47.1 applies not only to constitutional arguments under Sotelo and
Rochelle, but also to courts of appeals decisions that do not discuss the evi
dence an appellant argued best supported his constitutional claim. Sims v.
State,99 S.W.3d 600,601(Tex.Crim.App.2003). The TCCA reviewed the court of
appeals' discussion of the evidence, specific taped evidence pointed to by
the appellant, id. @ 601-02, the appellant's brief and motion for rehearing
arguments on the evidentiary issues pointed to, _id. @ 602-03, reviewing the
taped evidence pointed to, concluding they contained relevant evidence to the
contested issue and held the court of appeals should have mentioned its consid
eration of this important evidence that appellant asserted undermined the jury's
verdict. The TCCA remanded to the court of appeals, to consider this "important
evidence ... crucial to the claim" under Tex.R.App.P.47.1 id. @ 603-04: accord,
Light v. State,15 S.W.3d 104-106-07(Tex.Crim.App.2000)(applying Rule 47.1 on
PDR to vacate and remand to court of appeals).
In the case at bar, appeal counsel prevented Appellant from raising any
issue he believed should have been.;included in the appellant's brief, which
a review of the arguable issues Appellant raised pro-se in his motions filed
below reveal, compared to appeal counsel's single issue arguments presented.
The instant complaint about the propriety of the court of appeals decisions
below that did not rule on the merits of his arguments that counsel was being
ineffective contrary to USCA &4 and Appellant's briefed,"viable" constitutional
issues on the appellate record and the PDR record being arguable and substantial
demonstrate that the Court of Appeals abused it's discretion, by never ruling
on the merits of complaints. Under Sotelo,supra., a vacate and remand order
is required in the exercise of the TCCA's supervisory capacity and in the inter
ests of justice. 913 S.W.2d @ 509[citing, Rochelle,supra.]; Perkins v. State,
905 S.W.2d 452,453(Tex.App.-El Paso 1995)(same).
Additionally, the court of appeals abused it's discretion by not ruling
on the merits of Appellant's submitted, previouslylunknown;.to" him or suppressed,
"front-view" laser test photo State's evidence which shows Deputy Azwell in
trial falsely testified that Appellant was driving directly at him and he was
directly in front of Appellant's car, when he shot at Appellant, by indisput
ably showing all three of Deputy Azwell's shots came from the side of Appellants
car, including the contested bullet hole in the front of Appellant's car which
the State's bullet trajectory expert testified came from the front of the car
essentially falsely testifying as well or at least suppressing the existence
within his knowledge of the "front-view" laser test photo results showing that
the contested bullet hole in the front hood of the car HAD to come from the
side of Appellant's car. The Court of Appeals did not even mention this crucial
State's evidence showing Appellant is actually innocent of the aggravated threat
of a public servant charge, which given the gravity of the Appellant's prima
facie showing of egregious prosecutorial misconduct in this case, requires
the Sims result to follow as well. 99 S.W.3d @ 601-04. A close look at the front
view laser test photo evidence, and the State's actually filed exhibits showing
the side view laser test photo evidence, appear to be the same car in the same
police garage going through the same bullet trajectory laser test procedures,
the only difference being the previously undisclosed or suppressed front view
photos show the bullet is definitely shot from the side of the car, where the
angle of the side view photos showing the same laser beam appear to be coming
front the front of the car but are really coming from the side of the car.
See Appx.31(suppressed "front-view"),32(State's Ex."side-view"); Brown,519 F3d @
237-38(strikingly similar circumstances of state crime lab tech's false testi
mony, suppression of evidence & civil rights conspiracy loss in qualified immun
ity setting). „
o
The TCCA should review the front view and side view laser test photo evidence,
conclude the front-view laser test photo result contains relevant evidence to
the Appellant's issues of false testimony, suppressed evidence and the State's
failure to correct false testimony when it appears, and remand to the Beaumont
Court of Appeals for consideration of this "important evidence ... crucial
to his claim" of false evidence, suppressed evidence, and failure to correct
false testimony when it appears in violation of Due Process, id. @ 603-04.
Appellant argues that the structural nature of the errors he has revealed
in his trial and appeal as having occurred, counsel this Court to apply Sotelo
and Sims to his case, reaching the same result of a vacate .and remand to
the Beaumont Court of Appeals order, with specific instructions applicable
to the facts of his case. Tex.R.App.P.47.1,66.l(f); ..USCA 14.
2. TRIAL COUNSEL VIOLATED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL,
BY EMPLOYING A STRATEGY OF POISENING THE JURY WITH APPELLANT'S PRIOR
CONVICTIONS DESPITE HIS NOT TESTIFYING IN THE GUILT PHASE, REQUIRING
-REVERSAL, OF ALL FOUR OF THE CONVICTIONS AND REMAND FOR A NEW TRIAL
Appellant incorporates by reference his internal argument he said appeal
counsel SHOULD HAVE MADE, to wit: a record based direct appeal ineffective
assistance of counsel argument. See infra.,§(g),1.B.
3. TRIAL COUNSEL VIOLATED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL,
BY OUTRAGEOUSLY FAILING TO DISCOVER OR EMPLOY IN TRIAL THE STATE"S
"FRONTVIEW" LASER TEST PHOTO EVIDENCE TO PROVE THAT DEPUTY AZWELL
FALSELY TESTIFIED APPELLANT WAS DRIVING DIRECTLY AT HIM WHEN HE SHOT
HIM, AND TO PROVE CSI WRIGHT WAS SUPPRESSING THE EXCULPATORY NATURE
OF THE "FRONTVTEW" LASERTEST PHOTO EVIDENCE,COtTO^Y TO USCA 6,14
Facts -and Arguments
See supra.,§(f),K1Jl,4,16(related procedural history). The Court of Appeals
held only Deputy Azwell's testimony supported finding Appellant "tried to run
over him" while trying to continue "to evade arrest", and that this was why
Deputy Azwell "fired several shots at [Appellant] Martin's car when Martin
drove toward him", and "Martin's having driven directly at [Azwell] as the
chase was ending is not contradicted" in the record. See supra.,§(f),1113(2)
[citing, Appx.38-39, Mem.Op.,6-7]. Had the Beaumont Court of Appeals considered
Appellant's submitted "front-view" bullet trajectory laser test photo evidence,
the Court of Appeals ultimately would have had to conclude Deputy Azwell's
testimony that he only shot Appellant because he was driving directly at him,
is irrebutably contradicted as false and perjuorious testimony. See Appx.
31-32(suppressed "front-view" laser testphoto,compared to State Exhibit "side-
view"laser test photo).
In trial, when trial.'.counsel is crossexamining the State's bullet trajectory
reconstruction expert CSI Wright,it was undisputed two shots were fired from
the side of Appellant's car, one of which hit Appellant in the chest resulting
in Appellant's surrender. See Appx.1-5(excerpted testimony of Azwell and Wright)
CSI Wright testified Deputy Azwell's first shot went into Appellant's front
hood, going through it, and explained it's trajectory after going through the
hood, but only explained it's verticaltrajectory before going through the hood.
9
Trial counsel asked CSI Wright if Appellant's car was going 10-20 mph, could'nt
the front hood's bullet hole trajectory have come from the side of the car
like the other two shots did, which he dodged the issue of what does the laser
test photo results show where Deputy Azwell was located when he shot at Appel
lant (either beside or in front of the car) by testifying, "Sir, that's specu
lating on speed, and I could'nt make that type of speculation on it." Appx.4-
R.R.,v.6,ppl69-70. At this point trial counsel passed the witness and the State
asked no further questions. Appellant argues at this exact point trial counsel
outrageously failed to introduce the "front-view" laser test photos showing the
deputy shot into the front hood from the side of Appellant's car, very clearly
and indisputably. Appx.3-5 - R.R.,v.6,pp.155-71. Supporting the outrageousness
of this failure is the fact that trial counsel's final arguments to the jury
contend Deputy Azwell shot Appellant from the side of the car unnecessarily,
the deputy falsely testified he shot Appellant from the front of the car while
Appellant was driving directly at him to cover-up his excessive use of force,
the deuputy lacked credibility on this basis and this reasonable doubt was
further supported by the fact that CSI Wright "never did say what angle" horiz
ontally the front hood shot's bullet ^trajectory came from. Appx.7-9, Defense
Jury Arguments, R.R.,v.9,pp.96-108. Trial counsel's failure to further pursue
testimony on this issue in trial, and failure to produce the front-view laser
test photo "results and ask CSI Wright about1: their obvious exculpatory value
is a single instant of outrageously deficient performance of counsel for which
under the totality of the circumstances there exists no possible sound trial
strategy for pursuing. The front view laser photo result exonerates Appellant,
because they prove Deputy Azwell's testimony Appellant was driving directly
at him intending to run him over, was blatantly false, perjorious and revealingly
only supported by Deputy Azwell's testimony alone. Virtually all aggravated
assault on a public servant by use of a car cases show the appellant drove
his car directly at the police officer. See Supplemental Brief, Issue No.6,
Argument Bfciting, Dobbs,2013 Tex.App.LEXIS 3050(finding the car "accelerated
towards him. The officer fired his weapon as the car approached and then jumped
out of it's path just before it could strike him."); Dobbins,228 S.W.3d @ 765-66
(appellant drove directly at officer, then stopped at officer's direction,
then moved car forward striking officer); Whiddon,2007 Tex.App.LEXIS 916(finding
appellant "drove his truck toward the trooper, so that the trooper feared for
his life" and "would have hit the tropper if the trooper had not moved out
of the way ... only after the trooper shot out one of Whiddon's tires.");
Brown,2004 Tex.App.LEXIS 8479("appellant drove his vehicle directly at him
while he was standing outside his patrol car, forcing [him] to jump out of
the way to avoid being hit."); Miller,576 F3d @ 529-30(similar[l. The front-view
laser test photo completely exonerates Appellant as it shows Appellant was
NEVER driving directly at Deputy Azwell. Brown,183 S.W.3d @ 733(in aggravated
assault on public servant case, finding although officer was fairly close to
the vehicle as it passed him, there was no evidence the vehicle swerved in
any direction, suggesting appellant drove straight for the exit, holding it
was trial error to deny lesser included jury charge on reckless driving).
Accordingly, trial counsel was constitutionally ineffective in violation
of USCA 6 for failing to investigate the forensics of this shooting and use
the front-view laser test photo results to exonerate Appellant, Draughton v.
Dretke,427 F3d 286,296(5th Cir.2008), and failing to wring the truth out of
CSI Wright about his "front-view" laser test photo result. E.g., Brown v. Miller
519 F3d 231,237-38(5th Cir.2008)(state crime lab techIs false testimony, sup
pression of evidence, civil rights conspiracy strikingly similar situation).
See USCA 6; Strickland,466 U.S. @ 687-88,690; Johnson v State,169 S.W.3d 223,229-
30(Tex.Crim.App.20O5)(recognizing preservation of Brady issues below is oftenn* possible).
Therefore, as demonstrated hereinabove, because trial counsel ineffectively
argued the false testimony, suppressed evidence and State's failure to correct
the false testimony when it appeared issues in trial, because appeal counsel
refused to argued these issues in the Court of Appeals and because the Court
of Appeals when presented with these arguments pro-se didn't review them on
their merits, Appellant requests the TCCA find these issues arguable on their
merits, vacating and remanding to the Court of Appeals for their consideration
in the first instance. Tex.R.App.P.47.1,66.3(f); Robinson,16 S.W.3d @ 813;
Light,15 S.W.3d @ 106-07; Sotelo,913 S.W.2d @ 508-10.
Furthermore, Appellant requests this Court allow him, upon remand, to
file a supplemental brief to consolidate all the substantive issues he previous
ly tried to raise below but was preventted from raising and obtaining a ruling
on the merits on, in the interests of clarity, justice and the right to a mean-
inful appeal protected by Due Process, see Hanby's Annotated, Texas Rules of
Appellate Procedure,268[citing, Tex.R.App.P.68.2, Garrett v. State,749 S.W.2d
784(Tex.Crim.App.1988) and Carroll v. State,101 S.W.3d 454(Tex.Crim.App.2003)
(court of appeals was authorized on remand to reconsider a previous ruiing
on an issue not addressed by the Court of Criminal Appeals)], and to instruct
the Court of Appeals to order the State to file a response to the supplemental
brief consolidating the pro-se rehearing and en banc consideration issues under
Tex.R.App.P.49.2 governing responses to motions for rehearings. If any such
State response does NOT produce an agreement between the parties on the false
testimony, suppressed "front-view" laser test photo result evidence and other
prosecutorial misconduct arguments, then instruct the Court of Appeals to abate
the appeal and remand to the trial court for authentication and findings of
facts regarding the "front-view" laser test photo evidence after an evidentiary
hearing with Appellant represented by appointed counsel, followed by a Court
of Appeals decision on the merits of Appellant's supplemental brief arguments
and authorities under Tex.R.App.P.49.3.
4. THE STATE VIOLATED DUE PROCESS BY PRESENTING FALSE TESTIMONY THAT
APPELLANT DROVE DIRECTLY AT DEPUTY AZWELL, BY SUPPRESSING "FRONT-VIEW"
LASER TEST BULLET TRAJECTORY PHOTOS PROVING THE FALSE TESTIMONY,
AND/OR BY FAILING TO CORRECT THE FALSE TESTIMONY WHEN IT APPEARED
Appellant incorporates by reference his internal argument presented infra.,
§(g) 3, and as comprehensively presented at "Supplemental Brief: the Pro-Se
Identified Issues of, Reversible Error" also filed in this case.
5. THE COURT OF APPEALS ABUSED ITS DISCRETION CONTRARY TO DUE PROCESS
CONCERNS, THE INTERESTS OF JUSTICE AND CASELAW BY NOT ORDERING THE
STATE TO RESPOND TO THE APPELLANT'S PRO-SE MOTIONS FOR REHEARING
AND/OR EN BANC CONSIDERATION UNDER TEXAS RULES OF APP.PROC.47.1,49.2
Appellant incorporates by reference his procedural history in the Court
of Appeals, as stated infra.,§(f) HH12-16, including an outline of Appellant's
pro-se arguments pleaded in the Court of Appeals below, at id.,f1114-16.
Had the Court of Appeals ordered the State to file a response to Appel
lant's amended motion for rehearing or motion for en banc consideration, the
State might have admitted to a Due Process violation having caused the count I
aggravated threat of a public servant conviction, based simply on the strength
11
of their attached "front-view" bullet trajectory State's laser test photo's
compelling exculpatory value being squarely judicially placed before Montgomery
County prosecutors in this case. See, Lewis v. State,402 S.W.3d 852,855-56,865-
66(Tex.App.-Amarillo 2012),pet.granted, 2013 Tex.Crim.App.LEXIS 1526(10/23/13)(state
declined to respond under Tex.R.App.P.49.2, court granted relief under new
Supreme Court precedent, reforming "life without parole" to "life" sentence);
Reeves v. State,03-03-00490-CR,2004 Tex.App.LEXIS 6815(Tex.App.-San Antonio 2004
pet refd)(in Tex.R.App.P.49.2 response, State admitted to Double Jeopardy
violation, by Aggravated Assault on Public Servant and Aggravated Assault con
victions, vacating aggravated assault conviction)rCHC Honey Creek LLC v. Bexar
Appraisal District,04-11-00354-CV,2012 Tex.App.LEXIS 5458(Tex.App.-San Antonio
2012 no pet.)(after Tex.R.App.P.49.2 order to respond, parties agreed to with-
drawel of previous court opinion and for relief to be granted appellants; court
granted rehearing, withdrew previous opinion, then reversed and renderred judge
ment for the appellants). Given the structural nature of Appellant's arguements
on the merits of his pro-se issues of constitutional reversible error, as brief
ed in the Supplemental Brief for this Court's convenience, and the fact that
the record supports Appellant's pro-se demonstration of false testimony by
Deputy Azwell the primary witness against him, of suppressed front-view laser
photo evidence by. nefarious CSI testimony, and the State's failure to correct
false testimony once it appeared, Due Process concerns and the interests of
justice should compel this Court to consider Appellant's previously undisclosed
or suppressed "front-view" laser test photo evidence under Sotelo,913 S.W.2d
@ 508-10 and Sims,99 S.W.3d @ 601-04. And see, cf: Perkins v. State,902 S.W.2d
88,102(Tex.App.-El Paso 1995), supplemental opinion, 905 S.W.2d 452,452-43(Tex.
App.-El Paso 1995 pet refd)(claim of perjured expert witness testimony about
a scientific study attached to motion for rehearing for first time; rejected
for not being part of the record and for finding no support in the record other
wise; on supplemental opinion the court held it could take judicial notice
of the purported study because under Rochelle,791 S.W.2d @ 124-25 it had dis
cretion to consider new matter raised for the first time in a motion for re
hearing in the interests of justice or due process concerns, but would'nt under
the attached study's weakness as evidence); State v. Fury,186 S.W.3d 67,73-
74(Tex.App.-Hous.[lst Dist.]2005)(Brady claim of withheld photo evidence was
rejected, but holding previously undisclosed Brady material photo evidence,
must support Appellant's trial and appeal arguments, must be material, and
must demonstrate the photo would probably cause a different result in another
trial, to be considered in a direct appeal setting). After all, it is a State's
duty or obligation under the Due Process Clause of the 14th Amendment to the
United States Constitution, when confronted with false or perjorious State
witness trial testimony and misleading evidence, to correct the false or mis
leading testimony or evidence at that time. Tassin v. Cain,517 F3d 770,778-
79(5th Cir ...2003). Vasquez v. State,67 S.W.3d 229,239 & nn-19-20(Tex.Crim.App.
2002); Ex parte Adams,768 S.W.2d 281,291(Tex.Crim.App.1989).
In the case at bar, once the State is ordered to respond to the merits
of Appellant's rehearing and en Dane consideration motions as consolidated
into the Supplemental Brief filed in this case, arguably Due Process would
require the State to admit the attached "front-view" laser test photo evidence
is 'authentic, and their contents clearly show, reasonable doubt exists as
to Appellant's threatening Deputy Azwell by driving his car "directly" at him
when he shot Appellant because the "front-view" laser test photo clearly and
indisputably show Azwell's shot into the front nood came from the side of the
12
Appellant's car and not from the front of Appellant's car as Deputy Azwell fal
sely and pEcjoriously testified to in trial. Alternatively, the State could file
a response to the instant petition for discretionary review that accomplishes
the_ same Due Process obligation and duty of the State to admit to the false,
perjorious testimony of Deputy Azwell, to admit to CSI Wright's suppression
o; his knowledge of the "front-view" laser test photo evidence obvious exculpa
tory value when he testified in trial, and to take corrective action to repair
the damages to Montgomery County's judicial integrity by agreeing to a reversal
and acquittal judgement in the count I aggravated threat of a public servant
charge, and a reversal and remand for a new trial on the remaining charges due
to the jury being entitled to hearing Deputy Azwell, the main witness against
the Appellant, falsely testified so as to cause the count I conviction, hence
having severely damaged credibility that the jury never got to consider.
SHOULD THE-STATE DENY Appellant's facts claims that the "front-view" laser
test photo evidence suppressed in trial shows Deputy Azwell falsely testified
causing the count I conviction, CSI Wright fabricated or suppressed his laser
test results so as to not have to testify about the "front-view" laser test
photo results showing Deputy Azwell shot into Appellant's car at all times
from the side of the car, and the State knowingly failed to correct false test
imony when it appears, requiring reversal of all convictions, rendition of
a judgement of acquittal on count I and a new trial on counts II,III & iv,
a
THEN APPELLANT RESPECTFULLY REQUESTS this Court direct the Court of Appeals
to abate the appeal and remand the case back to the trial court for fact find -
ings relevant to the prosecutorial misconduct issues raised, after an eviden
tiary hearing conducted by appointed counsel or original trial counsel Walter
Boyd representing the Appellant, for the purposes of establishing the authen
ticity of the "front-view" laser test photo evidence, what their contents prove
about Deputy Azwell's and CSI Wright's trial testimony, and then returned to
the Court of Appeals for judgement. See Tex.R.App.P.44.4; LaPointe v. State,
225 S.W.3d 513,521-23 & n.9(Tex.Crim.App.2007)(holding an abate and remand
order is appropriate under Rule 44.4, which "is designed to create a new record
... The key to Rule 44.4 is that there must be an error that the appellate
court can correct."); Spence v. State,758 S.W.2d 597,599-600(Tex.Crim.App. 1988)
(holding it was error to exclude testimony of lead prosecutor, which would "ob
viously be particularly informative on the deliberateness of the State's actions"
when it is relevant to the vert heart of the Due Process claim; abating and
remanding so appellant can make an offer of proof or perfect a thwarted bill
of exception); Michaelwicz v. State,186 S.W.3d 601,613-16(Tex.App.-Austin 2006
reh'g ovr'ld, pet.refd, citations omitted) (motion for ex parte trial court
hearing to inspect police report for alleged exculpatory or material evidence
value, intended to invoke Brady protections, held to be a proper procedural
device to invoke in a direct appeal); Prudhomme v. State,28 S.W.3d 114,119-
20(Tex.App.-Texarkana 2000)(holding trial court error when combined with inef
fective assistance of counsel in motion for new trial issue, when asserted
pro-se seeking relief on the record, will be remedied by an abate and remand
order, reinstating the motion for new trial); McKee v. State,2012 Tex.App.LEXIS
2421 at **19-21(Tex.App.-Dallas 3-28-12)(on court's own motion, abating and
remanding for written findings and conclusions whether videotaped statements
to police were voluntary, then expressly ruling against appeallant on issue),
pet, refd, In re McKee, 2013 Tex. Crim. App. LEXIS 166(1-30-13).
13
(i) Prayer for Relief
Appellant respectfully prays that this Court will GRANT the petition,
GRANT leave to file the "Supplemental Brief: the Pro-Se Identified Reversible
Errors", HOLD the Court of Appeals abused it's discretion by it's "overruled"
decisions on Appellant's pro-se motions filed below because they presented
viable oK-racguable constitutional claims, GRDER the Court of Appeals affirmed
oecision of May 21,2014 VACATED AND REMANDED for a decision on the merits of
Appellant s rehearing motion's constitutional claims as clarified in his "Sup
plemental Brief:..." in the first instance, ORDER the State to file a response
under Tex.R.App.P.49.2 and absent an agreed resolution to this appeal between
the parties thereafter INSTRUCT the Court of Appeals to abate the appeal and
remand to the trial court under Martinez,163 S.W.3d 88 to determine if Appellant
will continue pro-se or with new appointed appeal counsel in subsequent appeal
proceedings, and under Tex.R.App.P.44.4 for an evidentiary hearing with newly
appointee- trial defense counsel for a determination of the authenticity, con
tents and facts relevant to the "front-view" laser photo test results evidence
and their implications to the testimony of Deputy Chris Azwell and State's
expert Mark Wright and the State's prosecutor's conduct in this trial, followed
by trial court fact findings.
Alternatively, Appellant respectfully prays that this Court will GRANT
the petition, set the case for submission and appoint appeal counsel to repre
sent the Appellant in those proceedings, and/or such other relief as law and
justice requires.
CERTIFICATE OF SERVICE
I certify and affirm placing a true and correct copy of this petition
for discretionary review into the prison mailbox on December 24,2014 addressed
to: (1) Abel Acosta, Clerk, Texas Court of Criminal Appeals, P.O. Box 12308,
Capitol Station, Austin, Texas 78711-2308; (2) Carol Anne Harley, Clerk, Ninth
Court of Appeals for Texas, 1001 Pearl St., Beaumont, Texas 77701; (3) the
State Prosecuting Attorney, Price Daniel Sr. Bldg., 209 W. 14th St., Rrn.202,
Austin, Texas 78711; (4) attorneys Jason Larrnan and Chris Allen, Montgomery
County District Attorney's Office, 207 W. Phillips, 2nd Fl., Conroe, Texas
Respectfully Submitted,
Peter James Martin
tdej-cid #1846003
Stiles Unit 3060 FM 3514
Beaumont, TX 77705
14
PD-1050-14
IN THE TEXAS COURT OF CRIMINAL APPEALS
COA 09-13-O0180-CR,09-13-00181-CR,09-13-00182-CR,09-13-00183-CR
PETER JAMES MARTIN, Appellant, §
§ From the 221st Judicial District
v.
§ Court of Montgomry County, Texas,
§ trial Cause Number 12-03-02604-CR
THE STATE OF TEXAS, Appellee, §
MOTION FOR LEAVE TO FILE "SUPPLEMENTAL BRIEF: THE PRO-SE
IDENTIFIED REVERSIBLE ERRORS"
This is a petition for discretionary review ("PDR") proceeding, in which
Appellant complains about his rights to Due Process were violated by appointed
appeal counsel's total disregard in the appellant's brief of the major defenses
argued to his jury in trial, and the Court of Appeals not ruling on his timely
filed complaints about counsel's brief and on the merits of his motion for
rehearing and en banc consideration procedural and substantive arquments showing
reversible error. See PDR Brief,ii(listing 5 arquments and sub-claims),vii(list-
inq 7 grounds for review). The Court of Appeals "overruled" Appellant's motions
for rehearing and reconsideration, which is not a rulinq on the merits presum
ably. Id.,x-xi[citing, Rochelle v. State,791 S.W.2d 121,124(Tex.Crim.App.1990) &
Hanby's Annotated, Texas Rules of Appellate Procedure,204(West's 2011 ed.)].
Appellant argued appeal counsel below presented only one deficient, minor,
meritless mistrial ruling argument, which omitted the major issues from his
trial that should have been brouqht up in the appellant's brief, denying him
effective assistance-of counsel on first appeal, requesting copies of his trial
transcripts, and moving for an abate and remand order for trial court fact
findings on these omitted appeal issues. Id.,3[citing, Rudd v. State,616 S.W.2d
623,624(Tex.Crim.App.1981) and Martinez v. State,163 S.W.3d 88(Tex.App.-Amarillo
2004)(applying Rudd's "interest of justice" clause to abate and remand case
to trial court), appeal after remand, 163 S.W.3d 92(Tex.App.-Amarillo 2005)
(rev'g & rem'dg for new trial). The interests of justice can't frankly be invok
ed without some kind of pro-se written demonstration of reversible error that
appointed appeal counsel did not pursue over objections. See e.g., Sotelo v.
State,913 S.W.2d 507,509-10(Tex.Crim.App.1995)("...constitutional restraints
such as due process ... may ... compel the consideration of a new matter raised
for the first time on motion for rehearing", comparinq PDR cases that proceeded
to the merits to those that did not, and sayinq "we did not reject the petition
outright when it raised a viable issue ... simply because that issue was not
raised in the court of appeals", rev'g & rem'dg to court of appeals for decision
on merits of double jeopardy argument); cf; Perkins v. State,902 S.W.2d 88,102
(Tex.App.-El Paso-1995"),on supp.opinion,905 S.W.2d 452-452-53(Tex.Crim.App.1995)
(rejectinq motion for rehearing arguments and attachments, as not supported
by the record and the argument without merit, also noting a motion for leave
to file a supplemental brief was granted and considered by the court). The Court
of Appeals abused it's discretion by bot ruling on the merits in a written
opinion on Appellant's pro-se identified reversible errors. PDR Brief,6-9[citing
Sotelo, Rochelle, and Tex.R.App.P.47.1]. The sheer number of viable or arguable
constitutional issues Appellant raises pro-se in his supplemental brief, shows
his Due process rights to effective assistance of counsel and to a meaningful
appeal were violated below. See Supp.Brief,vii-ix(listing 15 issues presented).
-1-
Additionally, Appellant raised below his constitutional rights to file
a pro-se brief on appeal were violated. PDR Brief,viii-ix 1111,2-3. The Appellant
continues to rely on this constitutional issue. Supp.Brief,2-411114,6,8,9.
For the above reasons, Appellant respectfully requests this Court GRANT
LEAVE to file the instant "Supplemental Brief: the Proi-Se Identified Reversible
Errors" in the instant PDR proceeding.
I certify and affirm placing a true and correct copy of this instrument
into the prison mailbox on 12/24/14 addressed to the State Prosecuting Attorney,
, Price Daniel Sr. Bldg., 209 W. 14th St., Rm.202, Austin, Texas 78711, and
the Montgomery County District Attorney's Office Jason Larman, 207 W. Phillips,
2nd Fl., Conroe, Texas 77301.
Respectfully Submitted,
PETER JAMES MARTIN, #1846003, pro-se,
Michael Unit, 2664 FM 2054,
Tennessee Colony, Texas 75886
•a-
PD-1050-14
IN THE TEXAS COURT OF CRIMINAL APPEALS
AND THE NINTH DISTRICT COURT OF APPEALS FOR TEXAS
COA ##09-13-00180-CR/09-13-00181-CR,09-13-00182-CR,09-100183-CR
Peter James Martin, Appellant, §
§ From the 221st Judicial District
v. § Court of Montgomery County, Texas
§ Cause Number 12-03-02604-CR
The State of Texas/ Appellee, %
SUPPLEMENTAL BRIEF: THE PRO-SE IDENTIFIED REVERSIBLE ERRORS
f Peter James Martin # 1846003
f Stiles Unit
j 3060 FM 3514
Beaumont, TX 77705
IDENTITY OF PARTIES AND COUNSEL
Trial Judges: Honorable Lisa Michalk, Honorable Mary Anne Turner,
Pre-Trial proceedings, Trial proceedings,
207 W. Phillips 210 W. Davis, Suite 400,
Conroe, Texas 77301 Conroe Texas 77301
Phone:(936)539-7808 Phone:(936)538-8174
Prosecutors: Robert Fryer, Joann Linzer,
SBOT #00798189 SBOT #24037255
Pre-Trial proceedings, Trial proceedings,
Assistant Mongomery Cty. Assistant Montgomery Cty.
District Attorney District Attorney
Amanda Lanning, Lane Haygood,
SBOT #24071514 SBOT #24066670
Trial proceedings, Trial proceedings,
Assistant Montgomery Cty. Assistant Montgomery Cty.
District Attorney District Attorney
Jason Larman, Bill Delmore,
SBOT #24072468 SBOT #05732400
Appeal proceedings Appeal proceedings
Assistant Montgomery Cty. Assistant Montgomery Cty.
District Attorney District Attorney
Brent Ligon, 207 W. Phillips, 2nd Fl.,
SBOT #00796955 Conroe, Texas 77301
District Attorney for Phone:(936)539-7800
Montgomery County, Texas Fax: )936)788-8395
Defense: Mr. Todd Ward, Mr. Walter Boyd Jr.
SBOT #00797780 SBOT #02782000
Pre-Trial proceedings Trial proceedings
DeGeurin and Dickson LLC, 202 Travis, Suite 208,
1013 Preston Ave., 7th Fl., Houston, Texas 77002
Houston, Texas 77002 Phone:(713)622-3505
Christopher Neal Allen, Jeremy D. Finch,
SBOT #24031816 SBOT #24052964
Appeal proceedings Appeal proceedings
Assistant Mongomery Cty. 300 W. Davis, Suite 450,
District Attorney Conroe, Texas 77301
Phone:(936)539-7800 Phone:(936)756-7297
Appellant: Mr. Peter James Martin, TDCJ-CID #1846003
Michael Unit of TDCJ-CID, 2664 FM 2054
Tennessee Colony, Texas 75886
Legal Assistant Paul James Koumjian, Post-Conviction Issues,
TDCJ-CID #1039181, Hughes Unit, Rt.2, Box 4400
Gatesville, Texas 76597
TABLE OF CONTENTS
Identity of Parties and Counsel i
Table of Contents ii
Index to Authorities iii-v
Statement of the Case vi
Statement Regarding Oral Argument vi
Issues Presented vii-ix
Arguments 1-33
1. Appeal Counsel Mr. Allen Violated Appellant's Right to Effective
Assistance of Counsel Guaranteed by Due Process, Preventing Meaningful
Review of Trial Court Defenses Argued to the Jury by Ignoring Same
in Favor of a Lone, Meritless, Waived Mistrial Ruling Claim 1-5
A. Due process 1
B. Complaint Was Timely Made in the Court of Appeals ... 1-4
C. Appeal Counsel Had an Actual Conflict of Interests ... 4-5
2. Penal Code §38.04(b) is Amended by Acts 2001 82nd Leg., Makes the
Offense Both a State Jail Felony and a Third Degree Felony, Under
Two Subsections With Different Elements, Renderring the Statute Un
constitutionally Vague, Indefinite and Uncertain as Written or Applied
Requiring Vacating the §38.04(b) Conviction and Dismissal of Charge 6-8
3. The Aggravated Threat of a public Servant Count and Enhanced Evading
Arrest Count, as Charged, Violate the Texas and United States Double
Jeopardy Prohibitions Against Multiple Punishments for the Same,
Continuous Course of Conduct, Requiring Vacating the Enhanced Evading
Arrest Count's Conviction and Sentence and Dismissing the Charge 8-11
4. Legally Insufficient Evidence of the Use or Exhibition of a Deadly
Weapon Motor Vehicle, Because None Was Shown to be Actually Endan
gered by Proximity to Appellant's Driving, Requiring Deletion of
the Deadly Weapons Findings From the Judgement of Evading Arrest 11-14
5. Legally Insufficient Evidence Alleged "Syringes" Were "Related"
to the Alleged "Possession of a Controlled Substance" Offense, and/or
Were Affirmatively Linked to Appellant, Requiring Reversal of the
Tampering With Evidence Conviction and as Acquittal Renderred 15-19
Facte ....--...-. "15-16
Arguments . 16-19
& Legally Insufficient Evidence of using a Vehicle to "Threaten" a
Public Servant While "Lawfully" Discharging His Duty, Based on Inde-
pendant Due process Violations of Trial Court False Testimony, Sup
pressed Evidence, Prosecution's Knowing Failure to Correct False
Testimony (USCA 14) and/or Unreasonable Siezure of Appellant by
Shooting Him For Unarmed Evading Arrest by Vehicle (USCA 4; P.C.§9.51(c)) 20-31
Facts 20-21
A. Legally Insufficient Evidence 22-26
B. False Testimony and Suppressed Evidence by Police and Prose
cutors, Failure of Prosecutors to Correct Knowing False Testimony
When it Appeared, in Violation of Due Process • 26-31
^* Violation of Appellant's Rights to Choice of Counsel and Conflict
Free Counsel and to a Knowing and Voluntary Decision on Plea Bargain
Offers, in Violation of USCA 6 & Tex.Constitutional Article I, Sec.10 31-33
Prayer 34
Certificate of Service 34
ii
INDEX TO AUTHORITIES
i •
.1
Constitutions, Statutes and Rules
USCA;|4 Unreasonable Seizures Prohibition viii,12,13,20,24,25
USCA |5 Dojuble Jeopardy Prohibition vii,8-ll
USCA ,6 ,- Assistance of Counsel Guarantee ii,vii,ix,3,31-33
USCA[14 Due Process Guarantee ii,vii-ix,1-7,11-33
Tex.Cohst., Art.I,§10 Assistance of Counsel Guarantee ii,ix,5,31
Tex.Const., Art.I,§14 Double Jeopardy Prohibition vii,8,ll
Texas Penal Code, • ,
§38.04(b) Evading Arrest by Vehicle \ ii,vi,vii,6-7,9-10
§38.04(d) Intent for Unenhanced Multiple punishments 9
§37.09(a) Tanparing With Evidence of Current Investigation of Offense 17
§37.09(d) Tanparing With Evidence of Subsequent Investigation of Offense vi, 15-19
§22v.01 Assault 22
§22\02(a)(2)(b)(2)(B) Aggravated Assault of Public Servant vi,10,22,24,26
§9.51(c) Unjustified Use of Daadly Faroe Defense Against
Criminal Liability for Assault on Public Servant ii,viii,20,25,26
§6.04(a) Concurrent Causation Defense Against Criminal Liability viii,13,23
Health and Safety Code,
§481.115-§481.118 Possession of Controlled Substance statutes vi,16
§481.125(a) Possession of Drug Paraphrenalia 17
Code of Criminal Procedure,
art.42.12,§3g(a)(2) Use of Deadly Weapon offense enhancer 9,10,14
Acts 2011, 82nd Leg.,
chapter 391 (SB 496) Version One of Penal Code §38.04(b) 6,7
chapter 839 Version One of Penal Code §38.04(b) 6
chapter 920(SB1416) Version Two of Penal Code §38.04(b) 6,7
Standards of Review in Texas,34 St. Mary's L.J.159(2002) 25,26
i
Texas Rules of Appellate Procedure,
33.1 Preservation of Appellate Complaints, How Shown 8
38.9 Briefing Rules to Be Construed Liberally 8
44.2(a) p&vmrsible Constitutional Error in Criminal Cases 11,27A,34
44.4 Re«©tfial Error of the Trial Court 27A,34
47.1 Written Opinions 3-5,11,14,19,30,33
49 Motion for Rehearing, Response, Decision 3,5,14,19,27A,33
®
Caselaw
Ex parte Adams,768 S.W.2d 281(Tex.Crim.App.1989) 26,29
U.S. v. Agurs,427 U.S.97,103(1976) 26,29
Anders v. California,386 U.S.738(1967) 3
Arizona v. Fulamonte,499 U.S.279(1991) 4
Badgett v. State,42 S.W.3d 126(Tex.Crim.App.2001) 17
U.S. v. Bagley,473 U.S.667(1985) 4,27
Baxter v. State, 12-O3-00253-CR, 2001 Tex.App.LEXIS 4861(Tex.App.-FasUarri 10-28-04) 22
Beets v. Scott,65 F3d 1258(5th Cir.2995)(en banc) 5,32,33
Lyons v. McCotter,770 F2d 529,534(5th Cir.1985) 3
in
(cori't)
Berger v. State,104 S.W,3d 199(Tex.App.-Austin 2003) 8
Blanton v. State, Q5-05-0i060-CR, 05-05-01061-CR, 2006 Tex.App.LEXIS 6367
(Tex.App.-C&llas,7-21-05), pet ref'd 2x 2007 Tex.Ajp.IEX3S 376,377(3-21-07) 18
Bledsoe v.;State,178 S;W.3d 824(Tex.Crim.App.2005) 4
Blockburger v. U.S.,383 U.3.289(1932.) 8-11
Brady v. Maryland,373 U.S'.'83(1963) ' 27,27A
Brock v. State/295 S^wi3d 45(Tex.App.-Hous[l Dist]2009 rehg denied) 24,26
Brown.v. State,183 S.W.3d 728(Tex.App.-Hous[l Dist]11-23-05 rehg denied) 12,13,22-24
Brown v. State, 11-03-00253-CR,. 2001Tex.Acp.LEXIS 6479(Tex.App.-^iastLaria 10-28-04 pet refd) 22
Callison v. State,218 S.W.3d 822(tex.App.-Beaumont 2007) 9
Ex parte earner,364 S.W.2d 896(Tex.Crim.App.2012) 6,7
Ex parte Caravos,203 S.W.3d 333(Tex.Crim.App.2008) 11
Ex parte Casteliano,863 S.W.2d 476(Tex.Crim.App.l993) 26-29
Cannon v. State,252 S.W.3d 342(Tex.Crim.App.2008) 8
Carlton v. State,176 S.W.3d 231(Tex.Crim.App.2005) 6
Cates v. State,102 S.W.3d 735(Tex.Crim.App.2003) 9,13
Chapman v. California,386 U.S.18(1967) 27
Clay v. State,240 S.W.3d 895(Tex.Crim.App.2007) 7
Clintom v. Stearns,780 S.W.2d 216(Tex.Crim.App.1989) 32
Cobb v. State,95 S.W.3d 364(Tex.App.-Hous]l Dist]2002 no pet) 7
Craig v. TDCJ-CID,2013 U.S.Dist.LEXIS 124976(E.D.Tex.2013) 27
Daniel v. State,577 S.W.2d 231(Tex.Crim.App.l979) 13
Deltenre v. State,808 S.W.2d 97(Tex.Crim.App.1990) 16,17,19
Ex parte Demmitt,664 S.W.2d 725(Tex.Crim.App.1985) 7
Dobbins v. State,228 S.W.3d 761(Tex.App.-Hous[14 Dist]2007) 11,14,22
Dobbs v. State, 07-12-0376-CR, 07-12-0377-CR, 2013 Tex.App.LEXCS 3050
(Tex.App.-AmariLlo 3-20-13 rehg ovrld) 13,22,23
Driehas v. State,175 S.W.3d 795(Tex.Crim.App.2005), on remand,
Drichas v. State,219 S.W.3d 471(Tex.App.-Texarkana 2007) 9,13
Draughton v. Dretke,427 F3d 286(5th Cir.2008) 28
Duggan v. State,778 S.W.2d 465(Tex.Crim.App.1999) 27
Ex parte Ervin,991 S.W.2d 804(Tex.Crim.App.1999) 10
Estrada v. State,313 S.W.3d 274(Tex.Crim.App.2010) 7
Estate of Starks v, Engert,5 F3d 230(7th Cir.1992) 12,22-24,26
Evitts v. Lucy,469 U.S;387(1985) 1
Favela v. State, 13-12-O03970-CR, 2012 Tex.Acp.LEXIS 5691(Tex.App.-Austin 5-6-13) 18,19
Fernandez v. State,316 S.W.3d 354(Tex.App.-Ft. Worth 2010 no pet) 11
Fraire v. City of Arlington,957 F2d 1268(5th Cir.1992) 25,26
State v. Fury,186 S.W.3d 67(Tex.App.-Hous[l Dist]2005 pet refd) 27,27A
Gaitan v. State,393 S.W.3d 400(Tex.App.-Amarillo 12-17-12) 17
Garcia v. State,57 S.W.3d 436(Tex.Crim.App.2001) 1,28
Gaston v. State,574 S.W.2d 120(Tex.Crim.App.1978) 17
Giglio v. U.S.,405 U.S.150(1972) 26,29,30
Gonzalez v. State,574 S.W.2d 135(Tex.Crim.App.1978) 24
U.S. v. GonzalezLopez,548 U.S.140(2006) 32
Graham v. Connor,490 U.S.386(1989) 25,26
Griego v. State,345 S.W.3d 742(Tex.App.-Amarillo 2011) 6
Harrell v. State,165 Tex.Crim.384,314 S.W.2d 590(Tex.Crim.App.1958) 7
Ex parte Hawkins,6 S.W.3d 554(Tex.Crim.App.1999) 8
Hobbs v. State,175 S.W.3d 777(Tex.Crim.App.2005) 8,9,11
Holloway v. State,780 S.W.2d 787(Tex.Crim.App.1989) 32
Huffman v. State,267 S.W.3d 902(Tex.Crim.App.2008) 10
Infante v. State,397 S.W.3d 731(Tex.App.-San Antonio 2-6-13) 10
Issac v. Cain,2013 U.S.Dist.LEXIS 123864(E.D.La.2012) 27
lv-a
(con't)
Jackson v. Virginia,443 U.S. 307(1979) ' 16,19,26
Jiminez v. Quarterman,129 S.Ct.681(2009) 2,4
Johnson v. State,364 S.W.3d 292(Tex.Crim.App.2012) 10
Johnson v. State,172 S.W.3d 6(Tex.App.-Austin 2005) 3
Johnson v. State,169 S.W.3d 223(Tex.Crim.App.2005) 27
Johnson v. Dretke,442.F3d 901(5th Cir.2006) 27
Jones v. State,926 S.W.2d 386(Tex.App.-Ft. Worth 1996) 32
Kaez v. State,287 S.W.3d 497(Tex.App.-Hous[14 Dist]2009) 24
Karenev v. State,281 S.W.3d 428(Tex.Crim.App.2009) 7
Kesaria v. State,189 S.W.3d 279(Tex.Crim.App.2009) 7
Koch v. Puckett,907 F2d 514(5th Cir.1990) 27
Kyles v. Whitney,514 U.S.418(1995) 4
Lafler v. Cooper,No.10-209, 566 U.S. (2012) 33
Lewis v. State,402 S.W.3d 852(Tex.App.-Amarillo 2012), pet.
granted, 2013 Tex.Crim.App.LESIX 1526(10-23-13) 27A
LaPointe v. State,225 S.W.3d 513(Tex.Crim.App.2007) 27A
L.P. v. State, S.W.3d— ,2009 Tex.App.LEXIS 5467(Tex.App.-Austin 7/14/09) 17
Martinez v. State,163 S.W.3d 88(Tex.App.-Amarillo 2004), appeal after
remand, 163 S.W.3d 92(Tex.App.-Amarillo 2005 no pet) 2-4
McQueen v. State,781 S.W.2d 600(Tex.Crim.App.1989) 10
Michaelwicz v. State,186 S.W.3d 601(Tex.App.-Austin 2006 rehg ovrld pet refd) 27A
U.S. v. Miller,576 F3d 518(5th Cir.2009) 11,22
Ex parte Morrow,952 S.W.2d 530(Tex.Crim.App.1997) 5
Moser v. Bascilla,865 F.Supp.249(E.D.Pa.1994) 24,25
Murphy v. State,01-O8-O0768-CR,01-08-00659-CR, 2010 Tex.App.LEKE31S53
(Tex.App.^faus[l Dist] 4-22-10 pet refd 2x) 9-10,14
Napue v. Illinois,360 U.S.264(1953) 27,29,30
Olivas v. State,203 S.W.3d 341(Tex.Crim.App.2006) 11,14
Pannellv. State,7 S.W.3d 222,224(Tex.App.-Dallas 1999) ' 17,18
Perillo'v. Johnson,205 F3d 775(5th Cir.2000) 5,32,33
Ex parte Perales,215 S.W.3d 418(Tex.Crim.App.2007) 16,19
Perkins v. State,902 S.W.2d 88(Tex.App.-El Paso 1995), on supplemental
opinion, 905 S.W.2d 452(Tex.App.-El paso 1995 pet refd) 27,27A
Powell v. Alabama,286 U.S.45(1932) * 32
Pyle v. Kansas,317 U.S.213(1942) ''26
Rabbv. State,387 S.W.3d 67(Tex.Crim.App.2012) 14,16,17,19
Reece v. State, 03-03-0C490-CR, 2004 Tex.AFP.IEXIS 6815(Tex.Acp-San Antonio 7-19-04 pet refd) 11
Robinson v. State,16 S.W.3d 808(Tex.Crim.App.2000) 3,8
Rodriguez v. State,129 S.W.3d 551(Tex.App.-Hous[l Dust]2004) 1,3
Roberson v. State,80 S.W.3d 730(Tex.App.-Hous[l Dist]2002) 18
Robertson v. State,187 S.W.3d 475(Tex.Crim.App.2006), on remand,
214 S.W.3d 665(Tex.App.-Waco 2007 no pet) 3
Rochelle v. State,791 S.W.2d 121(Tex.Crim.App.1990) 27,27A
Rudd v. State,616 S.W.2d 623(Tex.Crim.App.21981) 2
Satterwhite v. Lynaugh,886 S.W.2d 91(5th Cir.1989) 2
In re Schulman,252 S.W.3d 403(Tex.Crim.App.2008) 2
Self v. State, 05-02-01963-aR, 2004 Tex.App.LEXES 7352(Tex.App.-Dalias 2004), pet.diaid,
2005 Tex.Crim.Acp.LEXIS 278(3-2-05 ,pet.refd, 2005 Tex.Crim.App.LEXES 973(6-22-05) 13,24
U.S. v. Severns,559 F3d 274(5th Cir.2009) 9-11
Sierra v. State,280 S.W.3d 250(Tex.Crim.App.2009) 14
Sims v. State,99 S.W.3d 600,601-04(Tex.Crim.App.2003) 27A
Sotelo v. State,913 S.W.2d 507(Tex.Crim.App.1995) 11,27,27A
Spence v. State,758 S.W.2d 597(Tex.Crim.App.1988) 27A
Stone v. State,17 S.W.3d 348(Tex.App.-Corpus Christi 2000) 3
Strickland v. Washington,466 U.S.668(1984) 3,33
Swann v. City of Richmond,498 F. Supp. 2d 847(E.D.Va.2007) 12,13,22,23,26
iv-b
(con't)
Tassin v. Cain,517 F3d'770(5th Cir.2003) 27,27A,29,30
Thornton v. State,377 S.W.3d 814(Tex.App.-Amarillo 2012), reh overld,!
2012 Tex.App.LEXIS 7687(9-7-12), setting bail, 2012 Tex.Acp.LEXES 8233(9-28-12),
vacated, remanded, reformed verdict, No.PD-0669-13(Tex.Crim.App.4-2-2014) 16-18
Teeter v. State, 13-O7-00578-CR, 2009 Tex.App.IEXIS 5668(Tex.Acp.-<)arpus Christi 2009),
affd in pert part, revd on other grounds, 2010 Tex.Crim.Acp.LEXIS 1206(9-22-10),
writ denied, 2012 Tex.Qrim.App.UrpjD.LEXIS 3134(4/4/12) 24
Vasquez v. State,67 S.W.3d 229(Tex.Crim.App.2002) 27,27A
Verduzzo v. State.-, 2.4 S.W.3d 284(Tex.App.-Hous[14 Dist]2002) 18
Wheat v. U.S.,486 U.S.153(1988) 5,32
Willliams v. State, 03-06-00039-CR(Tex.App.-Austin 2007) 8
Whiddon v. State, 10-O5-C0085-CR, 2007 Tex.App.LEXIS 916(Tex.App.-Waco 2007) 22,25
In re Winship,397 U.S.358(1970) 14
Zuliani v. State,335 S.W.3d 213(Tex.App.-Austin 2011), affd and
remanded for further proceedings, 353 S.W.3d 872(Tex.Crim.App.2011),
reaffirmed, 383 S.W.3d 289(Tex.App.-Austin 2012), pet refd 2x,
2013 Tex.Qrim.App.LEXIS 64,65(1-9-13) 8-11
12/24/14 dated APPENDIX INDEX
Deputy Chris Azwell relevant testimony, Appx.1-3
Bullet Trajectory Expert Mark Wright relevant testimony Appx.3-5
Casey Meadows relevant testimony Appx.5-6
State's Closing Jury Arguments excerpts, Appx.7
Defense's Closing Jury Arguments exceprts, Appx.7-9
9/20/12 Motion to Withdraw Hearing (missing from appellate record), Appx.10-1.9
9/27/12 Motion to Substitute Hearing (same, also missing) Appx.20-28
Trial Defense Counsel Mr. Boyd's Affidavit : ::. Appx.29-30
"Front-View" Laser Test Photo Suppressed State's Evidence, Appx.31
"Side-View" Laser test Photo Filed State's Evidence, Appx.32
7/21/14 issued COA Memorandum Opinion,1-9 Appx.33-41
COA Order Denying En Banc Consideration Appx.42
COA Notices of filing or not filing Motions, Appx.43,44
COA Order Overruling Pro-Se Amended motion for Rehearing, Appx.45
COA Order Denying Pro-Se Motion to Exceed Page Limits, Appx.46,47
COA Order Refusing to Construe pro-Se Filed Briefs, Appx.48
3/17/14 Timely Filed Pro-Se Motion Complaining About Appeal Counsel, Appx.49-52
State's Exs.176 & 179 of Bullet Holes in Front and Side of Car, Appx.53,54
State's Exs.59,60,78,79,106-07 close-ups of syringes evidence, Appx.55-57
v
STATEMENT OF THE CASE
This is a criminal case appealing the convictions from the 221st Judicial
District Court of Montgomery County, Texas, based on a four count indictment
alleging in CT.I "threaten" Deputy Chris Azwell by using a vehicle as a deadly
weapon under 1st degree felony Penal Code §22.02(a)(2),(b)(2)(B)(Aggravated
Threat of a Public Servant) offense, in CT.II "flee" from Deputy Chris Azwell
by using a vehicle as a deadly weapon under 3rd degree felony Penal Code §38.04
(b)(2)(A)(Aggravated Evading Arrest) offense, in CT.III "alter,destroy, or
conceal" "Syringes" with "intent to impair it's availability as evidence ....
related to" a "Possession of Controlled Substance" ... offense" under 3rd degree
felony Penal Code §3,7.09(d) (Tampering With Evidence) offense and in CT.IV the
possession of a controlled substance under one gram a state jail felony under
Health and Safety Code §481.115(Possession of a Controlled Substance in Penalty
Group 1) offense. The indictment also contained five (5) enhancement paragraphs
alleging prior convictions.Clerk's Record ("OR.") ,39-40.
Appellant pleaded "not guilty" to all counts, Reporter's Record ("R.R."),
v.4,p.l, but a jury found him guilty on all counts as alleged in the indict
ment, made an affirmative finding of deadly weapon in the count II evading
arrest count, R.R.,v.9,pp.128-29, found the first three enhancement paragraph
allegations "true" and assessed punishments for counts I-III at "life" in
TDCJ-CID and for count IV at .twenty (20) years in TDCJ-CID. R.R.,v.ll,pp211-212.
The sentences are running concurrent. This appeal followed.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument will be helpful, to the Court.This is especially true because
this brief has been prepared pro-se and may not be as clear and concise as
the Court is used to. This case is complex and important because it involves
sheriff's deputy's and prosecutors acting in concert to cover up an excessive
use of force by the arresting officer in shooting the Appellant while fleeing
in his vehicle from the side of Appellant's car even though Appellant was not
endangering the officers or anyone else, the officer falsely testified in trial
that Appellant was driving straight at him to cover-up his excessive use of
force to arrest Appellant, and was assisted by another deputy expert witness
on ballistics who fabricated or suppressed evidence to suppress the existence
of State's evidence that conclusively proves the excessive force issue and
at the same time conclusively disproves Deputy Azwell's claim Appellant was
driving directly at him when he shot Appellant, which is the "front-view"
laser test showing bullet trajectory in the record. Appx.31. This appeal is very
important to the jurisprudence of Texas caselaw because it will show that the
Courts of Appeals will defend the integrity of the Texas trial courts from
abuse of police power by perversion of due process. The record is also long
and the relevant issues are minute and detailed therein. Oral argument is thus
requested, and appointment of appeal counsel is requested for this purpose,
or that the Court allow Appellant's inmate legal assistant to argue on his
behalf due to his formulation of the appeal arguments and familiarity with
the record.
vi
ISSUES PRESENTED
1. APPEAL COUNSEL VIOLATED DUE PROCESS RENDERRING INEFFECTIVE ASSISTANCE OF
COUNSEL AND PREVENTING A MEANINGFUL APPEAL, BY NOT ARGUING ANY MAJOR ISSUE
TRIAL COUNSEL ARGUED TO THE JURY, IN FAVOR OF PRESENTING A MERITLESS MIS
TRIAL RULING ARGUMENT OVER APPELLANT'S RECORD FILED OBJECTIONS see post.,
1-5;; Appx.49-52(Appellant's timely record filed objections); Appx.29-
30('trial counsel's affidavit); 7/21/14 Am.Mot.for Reh'g,4,13; Appx.45(COA
"Overruled" jugement)
2. APPEAL COUNSEL VIOLATED DUE PROCESS FOR HAVING AN ACTUAL CONFLICT OF IN
TERESTS IN REPRESENTING APPELLANT see post.,3-4; 7/21/14 Am.Mot.for Reh'§,
4,14-15; Appx.45(COA "Overruled" judgement)
3. TRIAL COUNSEL RENDERRED INEFFECTIVE ASSISTANCE OF COUNSEL BY EMPLOYING
A CLEARLY UNSOUND TRIAL STRATEGY OF REVEALING TO THE JURY THAT APPELLANT
HAD PRIOR CONVICTIONS DURING THE GUILT PHASE OF TRIAL, DESPITE APPELLANT
NEVER TESTIFYING DURING THE GUILT PHASE, AUTHORIZING RELIEF ON THIS RECORD
see post.,1-3,11111,2,4,7; Appx.36-37, Mem.Op,4-5(holding trial counsel
failed to object to CD video evidence, at R.R.10:. State's Ex.2 at 6:55-
7:00, 11:00-11:10); R.R.,v.4,pp.92-93,95-96(during voir dire trial counsel
admits to a "rap sheet" of "prior convictions")
4. THE COUNT II PENAL CODE §38.04(b) CONVICTION, AS AMENDED BY ACTS 2011,
82nd LEGISLATURE, IS UNCONSTITUTIONALLY VAGUE ON IT'S FACE AND AS APPLIED,
BECAUSE THE ALLEGED OFFENSE HAS TWO DIFFERENT VERSIONS OF §38.04(b) WITH
DIFFERENT ELEMENTS, ONE BEING A STATE JAIL FELONY AND THE OTHER BEING
A THIRD DEGREE FELONY, REQUIRING THIS COURT TO DECLARE THE STATUTE TO
BE UNCONSTITUTIONAL, VACATING THE CONVICTION see post.,6-8
5. THE AGGRAVATED THREAT OF A PUBLIC SERVANT BY USE OR EXHIBITION OF A VEHICLE
AS A DEADLY WEAPON COUNT AND THE ENHANCED EVADING ARREST BY USE OF A VEH
ICLE AS A DEADLY WEAPON COUNT, AS CHARGED, VIOLATE THE TEXAS AND UNITED
STATES DOUBLE JEOPARpY PROHIBITIONS! AGAINST MULTIPLE PUNISHMENTS FOR THE
SAME CONTINUOUS COURSE OF DRIVING CONDUCT, REQUIRING VACATING THE EVADING
ARREST COUNT'S CONVICTION AND DISMISSING THE CHARGE see post.,8-11; OR.39
6. LEGALLY INSUFFICIENT EVIDENCE^ OF;iTHEcUSE, OR EXHIBITION OF A DEADLY WEAPON
MOTOR VEHICLE, AS fiNOONE. WAS SH©WN:;.TOrBEcAGTtTALL¥^/ENpANGEREDf:BY/iPRQXIMITY
TO APPELLANT'S DRIVING, REQUIRING DELETION OF. THE DEADLY WEAPON FINDING
FROM THE EVADING ARREST JUDGEMENT AND REMAND FOR A NEW PUNISHMENT PHASE
TRIAL see post.,11-14; R.R.10: State's Ex.204(deputy's incar. video CD);
Appx.38, MemIOp_,6(holding CD video shows not maintaining speed, operating
vehicle in unsafe manner, failure to stop and several traffic violations,
but NOT FINDING ACTUAL DANGER BY PROXIMITY); Appx.8-9, R.R.,v.9,106-07
(arguing reasonable doubt on deadly weapon finding to jury); R.R.,v.9, pp.
128 lines 12-25, 129 lines 1-10(jury's affirmative finding)
7. LEGALLY INSUFFICIENT t\/fJ)ENCE THE ALLEGED "SYRINGES" WERE "RELATED" TO
THE ALLEGED "POSSESSION OF A CONTROLLED SUBSTANCE" OFFENSE, AS THE ROADSIDE
HIM) SYRINGES BY THEMSELVES-DO NOT PROVE ANY ELEMENT OF THE OFFENSE ALLEGED,
ARE NOT ILLEGAL OR CONTRABAND, FAILING TO STATE A COGNIZABLE LEGAL THEORY
REQUIRING A REVERSAL AND AN ACQUITTAL see post.,15-17; Appx.40, Mem.Pp.,8;
R.R.,v.9,pp.84,120-21; R.R.,v.6,pp.117,122-23,131,151-52,154-55; Appx.55-57
(close up photos of State's "syringes" evidence)
vii
8. LEGALLY INSUFFICIENT EVIDENCE OF AN AFFIRMATIVE LINK BETWEEN THE ROADSIDE
FOUND SYRINGES AND THE.. APPELLANT, REQUIRING REVERSAL OF CONVICTION AND
RENDITION OF AN ACQUITTAL see post.,15-16,18-19; Appx.40, Mem.Op.,8; R.R.,
v.6,pp.103-04,120-21; R.R. ,v.l4,p.23(trial counsel's hearsay/no affirma
tive link and irrelevance objections); R.R.,v.6,pp. 120-21,151-52(CSI Ever-
ton,admits he could not connect any found items to Appellant); R.R.,v.6,pp.
131,151-52,154-55(Crime Scene investigat3OT33 admit taking syringes back
to lab and not forensically testing them, guessing as to contents)
9. LEGALLY INSUFFICIENT EVIDENCE OF USING A VEHICLE TO "THREATEN" DEPUTY AZWELL
SINCE THE DEPUTY RAN IN FRONT OF APPELLANT'S VEHICLE FOR 1-2 SECOND ONLY
THEW JUMPED OUT OF THE WAY AGAIN, AND THERE IS NO EVIDENCE APPELLANT WAS
NOT DRIVING DIRECTLY FOR THE SPACE BEHIND AZWELL'S CAR BEFORE AZWELL RAN
INTO THAT SPACE RIGHT IN FRONT OF APPELLANT'S GAR, post.,20-23; Appx.38-39,
Mem.Pp.,6-7; Appx.1-3, R.R.,v.5,86-90 & R.R.,v.6,14-21(Deputy Chris Azwell
testimony excerpts):
10. LEGALLY INSUFFICIENT 6vty£NCE OF USING A VEHICLE TO "THREATEN" DEPUTY AZWELL
SINCE THE DEPUTY RAN IN FRONT OF APPELLANT'S ALREADY AIMED AND MOVING VEH
ICLE FOR 1-2 SECONDS ONLY THEN JUMPED OUT OF THE WAY AGAIN, UNDER THE CON
CURRENT CAUSATION STATUTE AT PENAL CODE §6.04(a) MAKING CLEAR APPELLANT
IS NOT CRIMINALLY RESPONSIBLE FOR THE DEPUTY RUNNING IN FRONT OF APPELLANTS
ALREADY AIMED AND MOVING VEHICLE WHICH WAS SUFFICIENT IN ITSELF TO CAUSE
THE "THREATEN" ELEMENT, AND APPELLANT'S DRIVING AIMED FOR THE SPACE BEHIND
AZWELL'S CAR BEFORE AZWELL RAN INTO THAT SPACE MOMENTARILY WAS CLEARLY
INSUFFICIENT IN ITSELF TO RESULT IN AZWELL BEING "THREATENED", REQUIRING
REVERSAL OF CONVICTION AND RENDITION OF AN ACQUITTALi see post.20-23;
AND SEE #9 above record citations
11. LEGALLY INSUFFICIENT EVIDENCE OF DEPUTY AZWELL "LAWFULLY DJWSHARGING" HIS
DUTY TO ARREST APPELLANT, BY HIS RUNNING IN FRONT OF APPELLANT'S VEHICLE
LONG ENOUGH: TO SHOOT APPELLANT AND THEN JUMP OUT OF THE WAY AGAIN, THUS
UNREASONABLY CREATING THE "THREAT" ENCOUNTER PROSCRIBED BY THE STATUTE,
IN VIOLATION OF USCA 4, THE OPPOSITE OF A VITAL FACT WITHIN THE STATE'S
BURDEN OF PROOF, REQUIRING THE[COUNT I CONVICTION TO BE REVERSED AND THE
RENDITION OF A JUDGEMENT OF ACQUITTAL see post.,20-21,24-25; and see #9,#10
above record citations
12. LEGALLY INSUFFICIENT EVIDENCE OF DEPUTY AZWELL "LAWFULLY DISCHARGING".HIS
DUTY TO ARREST APPELLANT, FOR THE SAME REASONS AS STATED IN #11 ABOVE,
BUT IN VIOLATION OF TEXAS PENAL CODE §9.51(c) FOR USING EXCESSIVE FORCE
IN SHOOTING THE APPELLANT TO ARREST HIM see post.,20-21,25-26; and see #9,
#10,#11 above record citations
12. FALSE TESTIMONY THAT APPELLANT WAS DRIVING "DIRECTLY" AT DEPUTY AZWELL,
FABRICATED AND SUPPRESSED BULLET TRAJECTORY LASER TEST PHOTO EVIDENCE
TESTIMONY BY MARK WRIGHT, AND KNOWING FAILURE OF PROSECUTORS TO CORRECT
THIS FALSE, MISLEADING TESTIMONY WHEN IT APPEARED IN TRIAL, IN VIOLATION
OF DUE PROCESS, REQUIRING REVERSAL OF CONVICTION AND RENDITION OF AN AC
QUITTAL DUE TO NO REMAINING COMPETENT EVIDENCE TO PROVE THE"THREATENED"
ELEMENT OF THE OFFENSE see post.,26-31; Appx.37-39, Mem.Pp.,5-7; Appx.l -
R.R.,v.5,88-90(Azwell fabricates Appellant is driving "directly" at him
when he fired his weapon from in front of Appellant's car); Appx.3-5 -
R.R.,v.6,155-71(Mark Wright testimony suppressing existence of "front-
vm
view" laser test photo result, dodging the issue on the record); Appx.31,
"Front-View" laser test photo result proving Deputy Azwell shot into Appel
lant's car from the side thus perjured himself when said he shot from
the front of the car)
13. VIOLATION OF APPELLANT'S RIGHT TO CHOICE OF COUNSEL UNDER USCA 6 AND TEXAS
CONSTITUTIONAL ARTICLE I. SECTION 10, REQUIRING REVERSAL OF THE CONVICTIONS
AND REMAND FOR A NEW TRIAL see post. ,31-32; OR.226-31; R.R. ,v.12,D.Exs.1-4
-Appx.14-16, Sept.20,2012 MTW Hearing,5-7; Appx.23-27 - Sept,27,2012 MTS
Hearing,4-8; R.R.,v.14,pp.23-27,30-33,38,47-48,66-71
14. VIOLATION OF APPELLANT'S RIGHT TO EFFECTIVE ASSISTANCE OF CONFLICT FREE
COUNSEL UNDER USCA 6, DUE TO CONFLICT BETWEEN MR WARD'S FEE CONTRACT AND
HIS DUTY OF LOYALTY OR ZEALOUS ADVOCACY TO APPELLANT CAUSING AN ADVERSE
EFFECT, REQUIRING REVERSAL OF THE CONVICTION'S AND REMAND FOR A NEW TRIAL,
see post.,31-33; and see #13 above record citations
15. INVOLUNTARY AND UNKNOWING- REJECTION OF 35 YEAR PLEA OFFER, REQUIRING RE
VERSAL OF CONVICTIONS AND REMAND FOR NEW TRIAL see post.,31-33; and see
#13 above record citations
IX
1. APPEAL COUNSEL MR. ALLEN VIOLATED APPELLANT'S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL ON DIRECT APPEAL GUARANTEED BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION/ PREVENT
ING MEANINGFUL REVIEW OF HIS TRIAL COURT DEFENSES ARGUED TO THE JURY,
BY IGNORING SAME IN FAVOR OF A LONE/ MERITLESS/ WAIVED MISTRIAL CLAIM
A. Due Process
Appeal counsel violated Appellant's rights to effective assistance of
counsel on direct appeal contrary to Due Process, by not arguing the primary
issues trial counsel presented to. the jury in this trial, which was an outra
geous relinquishment of appeal counsel's duty to an indigent appellant repre
sented by appointed appeal counsel, forcing this Appellant to pursue prd-se
a motion for rehearing after the Court of Appeals renderred it's predictable
judgements against Appellant based on appointed appeal counsel's meritless
argument. Evitts v. Lucy,469 U.S.387,396(1985)(right to effective assistance
of appeal counsel is grounded in USCA 14's.Due Process Clause); Rodriguez v.
State, 129' S.W.3d 551,562-64(Tex. App.-Hous. [1 Dist.]2004 pet refd) {after an
appointed appeal counsel argued maiaerous meritless issues and obtained an
affirmance of aggravated robbery conviction, this writer assisted pro-se; inmate
to file motion for rehearing arguing ineffective assistance of appeal counsel,
and no evidence appellant knew his partner had a concealed weapon on him when
entering and exiting convenience store, 'waitifi appellant assisting in getaway
as driver; rev'g conviction, renderring acquittal; court ordered previously
unpublished opinion of appointed appeal counsel's resulting opinion, together
with pro-se inmate's motion for rehearing results published,, merely commenting
on raised ineffective assistance of counsel claim but not ruling on it); Garcia
v. State,57 S.W.3d 436,440(Tex.Crim.App.2001)(approving of ineffective assist-
ance of counsel claims being resolved on direct appeal, when no competent at
torney would have engaged in record based deficient performance of counsel).
B. Complaint Was Timely Made in the Court of Appeals
About Appointed Appeal Counsel's Deficient Performance
I. On December 20,2013 appeal counsel filed an "Appellant's Brief" arguing
in one issue the trial court erred by failing to grant trial counsel's motion
for mistrial, when the State referred to Appellant's prior convictions unrel
ated to the current matter, while cross examining a defense witness, ibid.,6.
&• On February 10,2014 the State responded, arguing the trial court did not
err because trial counsel did not object to the State's previous introduction
of Appellant's prior convictions in a °CD video showing Appellant being inter
viewed by police and admitting when he allegedly committed these offenses he
was "on drugs" and "on thirty years parole", and additionally because trial
counsel had already informed the jury pool during voir dire that Appellant
had a "rap sheet" of "prior convictions" which even trial counsel would likely
not be able to overcome. See, 02/10/14 filed State's Brief,5-7(citing record).
3. On July 22,2014 trial counsel executed an affidavit swearing under oath
he called and went to see many times appeal counsel to help with this appeal,
but appeal counsel disregarded trial counsel, put him off and "did not even
have the good sense or courtesy or even the interest of his client to consult"
with trial counsel on "the number of errors" trial counsel "raised in trial",
further complaining that appeal counsel had "no excuse for not raising some
if not all of the errors in trial" trial counsel preserved, in appeal counsel's
single issue appellant's brief. Appx.29-30(Affidavit by Walter Boyd,1-2).
V.
H- On March 17,2014 Appellant timely filed a pro-se motion complaining about
appeal counsel's "only argument" having disregarded his many trial court argu
ments, by presenting only a meritless mistrial motion claim, that should have
been presented as a record based ineffective assistance of counsel claim based
on_ the same facts and relevant record excerpts, and also complaining about
being denied copies of the appellate record to actively assist appeal counsel
with, which resultingly prevented Appellant from participating in his own appeal
and denied him a meaningful appeal contrary to Due process. Appellant specific
ally complained appeal counsel's obviously "non-meritorious argument that the
State elicited Appellant's prior convictions ... without even discussing ...
defense counsel employed this tactic by inviting such error ... mak[ing] appeal
counsel's efforts seem like the boilerplate work of hacks ... like the equiva
lent .of an Anders brief [see, Jiminez v. Quarterman,129 S.Ct.681(2009) for-
a discussion of Anders briefs in direct appealsJ without the constitutionally
protected right to file a pro-se brief ... which may be the point" of appeal
counsel s filing of an obviously deliberately meritless appellant's brief.
Appellant informed the Court of Appeals he thus had "no confidence in his appeal
attorneys."Appx.49-52 ;(03/17/14 fi!ed Pro-Se Motion.l-*fw/an-.* cierk stamped
letter from Appellant to appeal counsel,making requests]; see also, related
pro-se motions filed April 23,2014, April 30,2014 & May 8,2014. "Appeal counsel
,T" iJ^"wefUSed t0 Present and ar9ue ... anything for Martin at his request ."
See' 0//21/14 filed Amended Motion for Rehearing,4.
F. On May 21,2014 the Court of Appeals affirmed the trial court's judgements,
rejecting appeal counsel's single issue erroneous mistrial motion ruling claim,
by adopting one of two State's rebuttal arguments, that trial counsel failed
to object to previously State admitted CD video evidence showing Appellant
admitting to police on the date of the offense he was "on drugs" and "on thirty
years parole", making the State's later visitation..of this issue as raised
on appeal "cumulative" and "not prejudicial". Appx.3£-37„ Mem.Pp.,4-5. The Court
did not discuss the other State's argument, that trial counsel poisened the
entire jury pool by admitting during voir dire that Appellant had a "rap sheet"
of prior convictions" which suggested "a less than perfect past". 02/10/14
filed State's Brief,6-7,9. —/ '
(,< The Court of Appeals abused it's discretion by failing to conduct a hearing
for Appellant when he first raised the issues of appeal counsel deficient per
formance on appeal by his filed appellant's brief. The Texas Court of Criminal
Appeals has held it will consider pro-se contentions raised in a brief on appeal
even when represented by appeal counsel who has already filed an appellant's
brief, in the interests of justice. See, Rudd v. State,616 S.W.2d 623,625(Tex.
Crim.App.1981); accord, Satterwhite v. Lynaugh,886 F2d 91,93(5th Cir 1989)
?" Martinez v. state, 1M S.W.3d BBfTpy.App.-am^in^ 2004), en appeal after retard
163 S.W.3d 92(Tex.App.-Amarillo 2005), the appellant complained about his appeal
counsel s appellate brief's omission of issues that he should have brought
up, denying him effective assistance of counsel on first appeal, and requested
to abate the appeal" and to "send appellant a copy 'of his transcripts'",
and the court of appeals issued an abate and remand order directing the trial
court to conduct a hearing as to whether appellant would be allowed to proceed
with his appeal pro-se, with another appeal lawyer or with the same appeal
lawyer, id.,163 S.W.3d nn^ ^ ^m^ni see,
Robertson v. State,214 S.W.3d 665,667-68(Tex.App.-Waco 2007 no pet.)(IAC holding
finding the jury heard evidence about two prior convictions "that the State
would not have been able to develop without Robertson's counsel 'opening the
door bo such: testimony. "); Johnson v. State, 172 S.W.3d 6,' (Tex.App.-- .Austin
2005)(IAC holding where trial counsel's ,failure to object to video evidence's
admissability was element of holding); Stone v. State,17 S.W.3d 348, 352-53(Tex
App.-corpus Christi 2000)(IAC holding finding trial record sufficient to show
IAC based on trial counsel's offering of prior conviction that would not have
come in otherwise, citing record from voir dire and bench conference):;;:, seepn.l.
The instant Appellant suffered the same deficient performance of counsel" here,
as in these above cited cases. Additionally, the Appellant suffered severe
prejudice from these errors given the jury found him guilty as charged on all
counts, and issued the maximum sentences allowable of three life sentences
and one twenty year sentence. Accordingly, ALL Appellant's convictions should
be reversed and remanded to the trial court for new trials. See, Strickland v.
Washington,466 U.S.668,694(1984); Robertson,214 S.W.3d @ 668-69; Stone.17 S,w73d
@ 253-54. Appellant is entitled to procedural and substantive reXief~on appeal.
Rodriguez,129 S.W.3d @ 562-64. Therefore, Appellant should be allowed to return
to the Court of Appeals, for a ruling on :the merits of his indicated issues.
Robinson, 16 S.W.3d ® 813; Martinez, 163 S.W.3d @ 89-91; Tex.R.App.P..47.1,49.
of tf^ri;^7'0 ™529,534(5th Cir.1985)(holding failure to object to a±rissicn
ofjefendant^s past cnmual record could have no strategic basis as it could not be considered
sound trial strategy; jury may have oonvicteefd because of the prior ccnvicticns; .revg conviction)
j&, Finally, further supporting returning this case to the direct appeal stage,
under the reasoning of Martinez,163 S.W.3d @ 89-91, Appellant raised his right
to represent himself pro-se in the Court of Appeals, by his citations to the
cases of Jiminez v. Quarterman,129 S.Ct.681,683-87(200() and Anders v. Califor
nia,386sq.S.738(1967), See Appx.49-52, 03/17/14 filed Pro-Se Motion,2,4. The
Court of Appeals below disregard of the pro-se representation on appeal issue,
probably violated Tex.R.App.P.47.1 requiring a vacate and remand order. Bledsoe
v. State,178 S.W.3d 824,827-28(Tex.Crim.App.2005).
Schulman,
supra; Bledsoe,supra. Tex.R.App.P.44.2(a).
O Appeal Counsel Mr. Allen Renderred Ineffective
Assistance of Conflict Free Appeal Counsel
By Representing Both Montgomery County and
Appellant, at Practically the Same Time
|. Attorney Mr. Christopher Neal Allen, State Bar No.24031816, was appointed
as appeal counsel due to Appellant's indigency. OR.,235(notice of appeal signed
by Mr. Allen); R.R.,v.13,pp.5-9.13.18-20(trial judge states she is going to
appoint Mr; Allen as appeal counsel); R.R.,v.l4,pp.21,71(trial judge appoints
Mr. Allen during trial counsel's motion for new trial); and see, Appx.
11/01/13 COA Prder (COA Order is directed only to Mr. Allen). According to the
Texas State Bar Directories for 2010 and 2014, in 2010 Mr. Allen was an assist
ant Montgomery County attorney, and in 2014 Mr. Allen was an assistant Montgomery
County district attorney. Montgomery County is the Texas political subdivision
that brought the instant felony prosecution against this Appellant. Mr. Allen
filed his authored Appellant's Brief in this case on December 10,2013, having
the foresight to get another attorney at law Mr. Jeremy Finch State Bar No.
2405964 to co-sign this document as a nominal co-author. Mr. Allen got Mr. Finch
to simply co-sign this brief in order to stave off any independant inquiries
into his representing this Appellant given his prior and subsequent representa
tion of Plontgomery County being so extensive and significant that it presents
a conflict of interest for Mr. Allen to represent the Appellant in this appeal.
3. When confronted with possible conflicts of interest, a criminal court
must take adequate steps to ensure that criminal defendants receive a fair
trial, or in the instant case a fair appeal. Wheat v. U.S.,486 U.S.153,160-
62(1988). The United States Constitution confers a right to effectve assistance
of conflict-free counsel. Perillo v. Johnson,205 F3d 775(5th Cir.2000). An
actual conflict exists when defense counsel is compelled to compromise his
duty of loyalty or zealous advocacy to the accused, by choosing between or
blending divergent or competing interests of his client. Id. @ 781. An "adverse
effect" is established by evidence that a plausible alternative defense stategy
or tactic could 'have been pursued but was not, requiring prejudice to be pre
sumed, id. @ 781-82. Where a prior representation by defense counsel involves
a formal and substantial attorney-client relationship, a finding of actual
conflict is more likely. The question turns on whether the character and exten-
siveness of the prior representation was such that counsel was ^prevented by
his competing interest in the welfare of the prior client, from vigorously
promoting the welfare of his current client, in this case the instant Appellant,
id. @ 799. See e.g, Ex parte Morrow,952 S.W.2d 530(Tex.Crim.App.1997)( recogniz
ing validity of conflict of interest claim against defense counsel). The record
in the case at bar clearly infers Mr. Allen "nefariously chose to compromise his
efforts" in representing this Appellant. Beets v. Scott,65 F3d 1258,1277(5th Cir
1995)(en banc).
3 Clearly, Mr. Allen has an extensive and formal attorney-client relation
ship with Montgomery County, not only before representing Appellant,- but after
representing Appellant, raising the nefarious inference that flontgomery County
rewarded Mr. Allen for throwing Appellant's case to the lions, by promoting
him from assistant county attorney to assistant district attorney. Indeed,
this conflict cound'nt be cleared since during the pendancy of the appeal in
Beaumont, between 12/10/13 when Mr. Allen filed his brief, and 5/21/14 when
the case was idlejnided; ' t% the Court of Appeals for a decision on the briefs,
Mr. Allen was actively representing the Appellant not having withdrawn from
representing him on the record, and representing the ffltortgomery County District
Attorney's office, outrageously enjoying the fruits of his co-operation with
the other Mongomery County court officers that conspired to cover-up the uncon
stitutional and illegal shooting of the Appellant merely to arrest him.while flee
ing from arrest and unarmed. There can be no doubt that Mr. Allen deliberately
lost Appellant's appeal, when you compare Mr. Allen's single issue raised in
his brief, to this Appellant's briefed complaints in his motions for rehearing,
as supported by trial counsel Mr. Boyd's submitted affidavit at Appx.28-29
severely criticizing Mr. Allen's refusal to accept his assistance with this
appeal andi total failure; ite afcgu% any .raSfe-i: -xseue.Mc.Boyd litigated in trial. The
issues Appellant raised pro-se in his motions, and herein throughout, are argu
able, plausible alternative appeal strategies, that should have been pursued,
but were not despite Appellant's record preserved attempts to communicate with
Mr. Allen and actively participate in this appeal.being rebuffed* "by deliberate
indifference. It appears that Mr. Allen chose Montgomery County.,,over Appellant,
in crafting his appellant's brief, in this case, adversely affecting Appellant's
Due Process rights to effective assistance of conflict-free counsel and to any
meaningful appeal of his trial court defenses and strategies. Due Process con
cerns and the interest of justice require this Court to give this Appellant
an opportunity to be heard on his arguments and authorities in direct appeal,
by a return to the direct appeal process and rebriefing being ordered. V Tex.R'.
App.P.47 ."1,49.
2. PENAL CODE §38.04(b) AS AMENDED BY ACTS 2011 82nd LEGISLATURE MAKES
THE ALLEGED OFFENSE IN THIS CASE BOTH A STATE JAIL FELONY AND A THIRD
DEGREE FELONY, RENDERRING THE STATUTE UNCONSTITUTIONALLY VAGUE AS
WRITTEN OR AS APPLIED/ REQUIRING THIS COURT TO DECLARE THE STATUTE
UNCONSTITUTIONAL/ VACATE THE CONVICTION AND DISMISS THE INDICTMENT
h Appellant's Penal Code §38.04(b) conviction was alleged to have occurred on
or about March 6,2012, by fleeing from Deputy Azwell while using a vehicle
while in flight as a deadly weapon, and there were no allegations of any prior
§38.04(b) convictions. See OR.,40 - Indictment No.12-03-02604-CR(count II).
Therefore, the 2011 amended version of §38.04(b) applies to Appellant's case.
This statute has been the subject of much legislative tinkering. One prior
version of §38.04(b), before the 2011 amendments, provided for Appellant to
only be subjected to a state jail felony offense "because he used a vehicle
while in flight and has no prior conviction for evading arrest." Ex parte earner
364 S.W.3d. 896,899 & n.2(Tex.Crim.App.2012)(opinion on pre-2009 amendments).
Thus, a prior §38.04(b) conviction had to be alleged in the indictment and
proven in the guilt phase of trial, or the conviction had to be reversed. See,
Carlton v. State,176 S.W.3d 231,233-36(Tex.Crim.App.2005); Griego v. State,
345 S.W.3d 742(Tex.App.-Amarillo 2011). The Legislature's intent in passing
the 2009-11 version of §38.04(b) was to punish a person who evades arrest or
detention with a prior conviction under this statute more severely than a first
time offender, irrespective of whether a vehicle was used. Carner,364 S.W.3d
@ 899. The Court noted in dicta that "now it is a third degree felony if an
offender used a vehicle to evade --;.; regardless of whether he has a prior con
viction for evading." id @ n.3. However, the Court did not recognize that this
statute's 2011 amendment contains two versions of the provisions applied herein.
§38.04 Evading Arrest or Detention * * *
* * *
(b) [Verscn 2; As amended by Acts 2011/ 82nd
(b) [VeEskn 1; As amended by Acts 2011, 82nd Leg./ ch.920] An offense under this section
Leg., chs.391 & 839] An offense under this sec is a Class A misdemeanor, except that the of
tion is a CLass A misdemeanor, except that the fense is:
offense is:
(1) a state jail felony if the actor has been
(1) a state ja^felony if: previously convicted under this section;
(A) the actor has been previously convicted (2) a felony of the third degree if:
under this section; or
(A) the actor uses a vehicle while the actor
(B) the actor uses a vehicle ... while the actor is in flight;
is in flight and the actor has not been previous
ly convicted under this section; (B) another suffers serious bodily injury ...
while the actor is in flight; or
(2) a felony of the third degree if:
(C) the actor uses a .tire deflation device
(A) the actor uses a vehicle ... while the actor against the officer while the actor is
is in flight and the actor has ..-; been previous in flight; or
ly convicted under this section; or
(3) a felony of the second degree if:
(b) another suffers serious bodily injury ...
while the actor is in flight. (A) another suffers death ... while the actor
is in flight; or
* * *
(B) another suffers serious bodily injury as
as a direct result of ... the actor's use of a
tire deflation device while ... in flight.
* * *
Under Version 1, Appellant's use of a vehicle to commit the offense is a state
jail felony. See Acts 2011,82nd Leg.,ch.391(S.B.496),§1(approved by Governor
6-17-11)-. Under Version 2>••-.Appellant's use of a vehicle to commit the.offense
without a prior §38.04.conviction is a third degree felony. See Acts 201)1,82nd
Leg.,ch.920(S.B.1416),§3(approved by Governor 6-17-11). Clearly, both versions
became effective on September 1,2012. , each without reference to the other.
See Tex.Penal Code §38.04(West's 2012-13 Pocket Part)historical and Statutory
Notes on 2011 Legislation. This Court's Carner,364 S.W.3d @ 899 n.6-dicta merely
recognizes version 2's 3rd degree felony designation of the offense, without
recognizing version l's state jail felony designation of the offense and the
clear conflict created in this single statute as to the elements of and penal
ties assigned to Appellant's alleged §38.04(b) offense.
•I. Appellant argues §38.04(b) is unconstitutionally indefinite and uncertain
on due course of law grounds hence must be held void from inception. Harrell
v. State,165 Tex.Crim.384,385-87,314 S.W.2d 59©v 590-92(1958). Alternatively the
statute is unconstitutionally vague as written and applied renderring it void
from inception. USCA 5,14. Because the 2011 version of §38.11(b) is void, the
former :. 2009 version remains in effect for purposes of Appellant's conviction.
See e.g., Carner,364 S.W.3d @ 899("After the 2009 amendments became effective ,
a person was guilty of a state-jail-felony evading arrest if the actor / has
been previously convicted of evading arrest or if he used a vehicle while in
flight and has no prior conviction for evading arrest."); Ex parte Demmitt,664
S.W.2d 725,726(Tex.Crim.App.1986)(holding when controlled substance law was
held unconstitutional as written, former version of statute remained in effect
for Demmitt's case).
"3. Appellant's instant third degree felony conviction under §38.04(b) was
enhanced by prior convictions.: The jury issued the maximum punishment of "life"
in prison, in this case. Because the 2001 versions of §38.11(b) are unconsti
tutionally indefinite, uncertain and vague as written, the former 2009 version
of the §38.04(b) applies here which makes Appellant's offense a state jail
felony ahdchaving^maximum enhanceable range to punishment of 20 years in prison
clearly much less than life in prison. Because Appellant was punished by the
jury in this case, he is entitled to a reversal of the punishment imposed in
his case, and a remand to the trial court for a new punishment phase jury
trial. See Tex.R.App.P.44.2; Clay v. State,240 S.W.3d 895,905(Tex.Crim.App.2007)
(requiring appellate court to be persuaded beyond a reasonable doubt that the
jury's ^verdict on punishment would have been the same regardless of the error).
V. To the extent that this issue may not be raised for the first time in this
appeal, Karenev v. State,281 S.W.3d 428(Tex.Crim.App.2009), Appellant argues
the trial court below did not give trial counsel Mr. Boyd a reasonable time or
opportunity to examine the jury charges to formulate any unconstitutional as
written arguments for this evading arrest charge. See R.R.,v.9,pp.50-54. Mr.
Boyd expressly stated he had "about 12 objections" to the evading arrest jury
charges, id.,p.61, in a context of presenting unconstitutional statutory prov
isions arguments, id,pp.59-62. Mr Boyd informed the trial court he had not
had enough time to formulate his objections to the evading arrest charge be
cause of the trial court's denial of a reasonable time to formulate objections
to the jury charges, id.,p.61. Therefore, Appellant should be excused from
raising an unconstitutional stfciute objection in this factual context. Estrada
v. State,313 S.W.3d 274,287(Tex.Crim.App.2010); Kesaria v. State,189 S.W.3d 279,
282(Tex.Crim.App.2006); Cobb v. State, 95 S.W.33- 664,1366 (Tex.App.-Hous. [1 Dist] 2002,
no pet). Alternatively, Appellant argues trial counsel Mr. Boyd's failure to
preserve this issue in the trial court was blatant ineffective assistance of
counsel on this record. Cannon v. State,252 S.W.3d 342,347(Tex.CrirruApp.2008);
Robinson v. State,16 S.W.3d 808,813(Tex.Crim.App.2000). Accordingly, this issue
is properly reviewable in Appellant MArtin's case. See Tex.R.App.P.Ann., Rules
33.1, 38.9(West's 2011 ed.). Tex.R.App.P.44.2(a).
3. THE AGGRAVATED THREAT OF A PUBLIC SERVANT COUNT AND ENHANCED: EVADING
ARREST COUNT, AS CHARGED, VIOLATE THE TEXAS AND UNITED STATES DOUBLE
JEOPARDY PROHIBITIONS AGAINST MULTIPLE PUNISHMENTS FOR THE SAME CON
TINUOUS COURSE OF CONDUCT, REQUIRING VACATING THE ENHANCED EVADING
ARREST COUNT'S CONVICTION AND SENTENCE AND DISMISSING THE CHARGE
I. Appellant's four count indictment alleges in pertinent parts as follows:
Count I
"...while using or exhibiting a deadly weapon, to wit: a motor vehicle,
intentionally or knowingly threaten O Azwell, a public servant act
ing in the lawful discharge of an official duty, with imminent bodily
injury, and the Defendant knew C. Azwell was a public servant. "OR. ,39.
Count II
"...intentionally flee from O Azwell, a person the defendant knew
was a peace officer attempting lawfully to arrest or detain the defen
dant, and the defendant used a vehicle while ... in flight, And ...
the Defendant did then and there use or exhibit a deadly weapon,
to wit: a motor vehicle." OR.,39.
Count I would not require proof of any fact that Count II does not, as O Azwell
being threatened or endangered by Appellant's driving in Count II is implied
or imputed by Count I. Zuliani v. State,335 S.W.3d 213,218(Tex.App.-Austin
2011), affd & remanded for further proceedings, 353 S.W.3d 872, on remand,
383 S.W.3d 289,297(Tex.App.-Austin 2012 pet refd)(citations omitted); Blockbur-
ger v. U.S.,284 U.S.299,304(1932); Williams v. State,No.03-06-00039-CR(Tex.App.-
Austin 2007). The State's position on the basic facts of this case is that
Deputy Azwell's pursuit of Appellant began on a freeway, led to a dead end
street in a rural neighborhood, where Azwell shot Appellant in his chest while
he was "continuing his flight" in his car, resulting in Appellant being arrested
by surrendering. See 02/10/2014 filed State's Brief,1-2,8-9; Appx.vl^r R.R.,v.5,
p.90(Azwell's testimony that he shot Appellant on the dead end street while
Appellant continued to evade). This uncontradicted evidence shows that Appellant
committed a single continuous act of evasive..drivings, which as a matter of law
and "Texas cfifflihaliiappi^lfipEeceldenfcsj,,' cannot be converted into seperate crimes
by employing "stop^action" prosecution pleadings. Hobbs v. State,175 S.W.3d
777,779-81(Tex.Crim.App.2005); and see, Zuliani,383 S.W.3d @ 295 n.5(using
"stop-action" quote). Here, the Count I aggravated "threat" to Azwell is based
on the SAME, CONTINUOUS ACT OF RECKLESS EVASIVE DRIVING constituting the Count
II "fleefing]" from Azwell allegations..Therefore, these counts, as charged,
violate the prohibition against Double Jeopardy, if based on the same conduct.
Zuliani,335 S.W.3d @ 218[citing, Blockburger,284 U.S. @ 304], affd, 353 S.W.3d
872(Tex.Crim.App.2011). Indeed, only Deputy O Azwell and noone else is named
in both counts I and HJ, supporting a Double Jeopardy multiple punishments
conclusion here. Williams,supra.[citing, Ex parte Hawkins,6 S.W.3d 554,556,561
(Tex.Crim.App. 1999 & Berger v. ;State, 104 S.W.3d 199",205(Tex.App,-Austin 2003, no
pet) ]("However, in this case, Williams was indicted for asingle offense involving asingle victim,
Alejandro Catemaxa. The State did not name Claudio Catenaxa as a victim in either count of the
indictment.").
8
3. The Court of Appeals original, unpublished opinion has already rejected
the State's position that other roadway traffic had to pull to the shoulder
to allow the Appellant and his gedice pursuers to pass. Compare, 02/10/14 filed
State's Brief,1(claiming the facts but making no deadly weapon argument), with,
Appx.,38 - 06/27/14 Mem.Pp.,6(finding Appellant committed several traffic viola
tions, admitted he was guilty of "evading arrest" per-se, but without comment
on if his driving was actually dangerous due to proximity to another person).
There -is no evidence in the record to meet the State's burden to prove beyond
a reasonable doubt the "actual endangerment" of any person due to "proximity".
Drichas v. State,219 S.W.3d 471,475-77(Tex.App.-Texarkana 2007)(holding "the
mere existence of some other motorist somewhere in the roadway" is insufficient
evidence of a deadly weapon motor veh%le allegation, as "an unspecified proxim
ity is necessary to show that actual danger existed, even though no person
was actually endangered."),pet refd[on remand from, Drichas v. State,175 S.W.3d
795,799(Tex.Crim.App.2005)]; and, Callfsc^w, State,218 S.W.3d 822,827(Tex.App.-
Beaumont 2007)[citing, Cates v. State,102 S.W.3d 735,738(Tex.Crim.App. 2003)].
Thus, the original unpublished Court of Appeals opinion implicitly rejects
the State's trial arguments in support of a deadly weapon motor vehicle finding
that Deputy Azwell was almost run over by Appellant's driving directly at him,
Appx.,7 - R.R.,v.9,pp.82-83,115-16, that Deputy Azwell felt "threatened" by
this alleged driving directly at him conduct, R.R.,v.6,pp.30,100, whereas trial
counsel had argued Azwell was NOT threatened, that "testimony was false, the
motive being to cover-up Azwell's unnecessary shooting of Appellant in the
chest through his passenger side window to arrest him, Appx.,7-9 - R.R.,v.9,pp.
96,98,100, hence there was reasonable doubt Appellant tried to actually endang
er anyone. Appx.,8 - R.R.,v.9,p.106-07. Because almost all of the evidence
and trial court arguments focus upon Deputy Azwell being actually endangered
and threatened by Appellant's continuous act of criminal evasion by vehicle,
the State violated the Double Jeopardy prohibition against multiple punishments
by indicting, prosecuting and convicting Appellant for both threat of Deputy
Azwell by use or exhibition of a deadly weapon motor vehicle, and, evading
arrest by fleeing from Deputy Azwell by use of a vehicle as a deadly weapon.
Zuliani,335 S.W.3d @ 218-19, affd, 353 S.W.3d 872(Tex.Crim.App.2011), on remand
reaching same result, 383 S.W.3d 289(Tex.App.-Austin 2012 pet refd); Hobbs,175
S.W.3d @ 779-781(single continuous criminal act of evasive driving cannot be
converted into seperate crimes by mere "change in locomotion").
3, The Texas Legislature has expressed it's intent to allow the multiple
punishments for an unenhanced evading arrest by use of a vehicle charge, Penal
Code §38.04(d)(as amended, added 2011), and one court has held an enhanced
by Tex.Code Crim.Proc.art.42.12,§3g(a)(2) evading arrest by use of a vehicle
as a deadly weapon charge does not violates Double Jeopardy within the scope
of those two statutes alone, Murphy v. State,01-08-00768-CR,01-08-00659-CR,2010
Tex.App.LEXIS 4JV3 at **16-17(Tex.App.-Hous.[1 Dist.] 4-22-10 pet refd 2x);
the instant case is distinguishable as not involving the two statutes at issue
in Murphy, but the three statutes of Penal Code §22.02(a)(2)(b)(2)(B), Penal
Code §38.04(b)(2)(A) and Code Crim.Proc.art.42.12,§3g(a)(2). In a strikingly
similar three statute enhancing scheme case, the Fifth Circuit Court of Appeals
held while there was a clearly expressed Congressional intent to permit multi
ple punishments for the ppedicate offense (mail or wire fraud) enhanced by
the use of fire taer.e.".was ho Boubil.erJebpMdy,iiolationsc£ in that leohtext
t'similarrto-Murphy,suprau) but went on to hold "it is unclear whether Congress
intended the enhancement in §844(b) to apply to every arson offense", requiring
a Blockburger analysis. See, U.S. v. Severns,559 F3d 274,286,289-90 & nn.52,53,
82(5th Cir.2009). The Court of Appeals concluded the "unit of prosecution"
involved "was a single use of a single firearm" imposing multiple punishments,
and therefore was barred under it's Federal application of Blockburqer and
the Double Jeopardy Clause, id.,559 F3d @ 291; see, Zuliani,383 S.W.3d @ 298
(searching for the "best indicators of the allowable unit of prosecution pre
scribed by the Legislature."). Given that there is no similar Texas case inter
preting three statutes, the Severns analysis should be applied here. And since
under Hobbs,175 S.W.3d @ 779-81 Appellant's single continuous act of evasive
driving cannot be converted into seperate crimes, as was done in the instant
case, this Court should also conclude that Appellant's single use of a single
motor vehicle invokes no clear Texas Legislative intent to impose multiple pun
ishments in the instant case.requiring the Severns result.
H, Relief is also required under the eight (8) "Ervin-Factors" test. See,
Zuliani,353 S.W.3d 872, remanded, 383 S.W.3d @ 295-97[both cases citing Ex
parte Ervin,991 S.W.2d 804,814(Tex.Crim.App.1999)]. Factors 1,3 & 4 could sup
port the inference that the Legislature intended Appellant's charged offenses
to be punished seperately, because the evading arrest and threat of a public
servant charges are in seperate statutory sections, they are not named similarly
and evading arrest by use of a vehicle as a deadly weapon while in flight is
a lesser degree of offense that threat of a public servant by use of a vehicle as
a deadly weapon. Compare, Penal Code §38.04(b)(2)(A)(3rd degree felony), with,
Penal Code §22.02(a)(2)(b)(2)(first degree felony); Zuliani,383 S.W.3d @ 298.
However, factors 2,7 & 8 do not support such an inference, id.(noting the Leg
islature must make manifest it's intention to punish a single act twice). The
2nd factor is inapplicable because offenses listed in seperate statutory sect
ions cannot be stated in the alternative, id. The 7th factor, being the Block-
burger test, suppports the conclusion that the Legislature intended this Appel-.
lant's single continuous act of evasive driving to be only punished once.' See,
infra., and, Zuliani,383 S.W.3d @ 298[citing, Zuliani,335 S.W.3d @ 218-19].
Finally, there is nothing in these three statutes legislative histories to
indicate that the Texas Legislature intended these offenses, as charged, tp be
punished seperately. Therefore, the instant analysis result hinges on the 5th
and 6th Ervin Factors, i.e., whether the offenses share a common focus, and
whether that focus indicates a single instance of Appellant's conduct. The
"focus" or "gravamen" of these two offenses will indicate the "allowable unit
of prosecution prescribed by the Legislature." id. Analyzed are whether the
two offenses focus on being a "result of conduct" crime where unspecified con
duct is criminalized because of it's result (i.e., aggravated assault causing
serious bodily injury), a "nature of conduct" crime criminalized because the
nature of the act itself is unlawful (i.e., assault by threat) or a "circumstan
ces surrounding the conduct" crime where otherwise innocent behavior becomes
criminal due to the circumstances under which it is done. id.[citing, Huffman v.
State,267 S.W.3d 902,907(Tex.Crim.App.2008), McQueen v. State,781 S.W.2d 600,603
(Tex.Crim.App.1989) & Johnson v. State,364 S.W.3d 292,298(Tex.Crim.App.2012)].
Some offenses contain two focus elements and the question becomes which aspects
of the statutes predominates, id.[citing, Huffman,supra.].
3", Evading arrest by use of a vehicle in a dangerous manner is not focussed
on the result of the driving, since the offense is committed regardless of
whether dangerous driving causes any harm. Murphy,2010 Tex.App.lEXIS at *13
Rather, this offense is a nature of conduct issue because evading arrest is
unlawful regardless of the consequences, and a circumstances of conduct issue
because evading arrest by driving dangerously is a circumstance meant to be
criminalized, ^.(distinguishing between "reckless" and "dangerous" driving).
10
la. Threatening a public servant by use of a vehicle is not focussed on the
result of the threat. It is irrelevant if a public servant actually felt threat
ened. Dobbins v. State,228 S.W..3d 761,766-67(Tex.App.Hous.[14 Dist.]2007)[citing
Olivas v. State,203 S.W.3d 341,342-51(Tex.Crim.App.2006)]. Rather this offense
is also a nature of the conduct issue because assault-by-threat as the basic
underlying offense is a nature of the conduct offense, Zuliani,383 S.W.3d @ 298
[citing, Marinos v. State,186 S.W.3d 167,174(Tex.App.-Austin 2006 pet ref d)]and
also a circumstances currounding the conduct issue because this offense must
be committed under circumstances that put a public servant under threat of
imminent bodily injury. E.g., Zuliani,383 S.W.3d @ 299.
7. Therefore, the focus or gravamen of these two offenses indicates a single
continuous instance of conduct, since the nature and circumstances of Appellants
driving form the focus or gravamen of the offenses, and a single continuous
act of evasive driving cannot be converted into seperate crimes by the State
electing in one count to prosecute a threat or danger to Deputy Azwell specific
ally and electing in a second count to prosecute a danger to the general public
or Deputy Azwell, by "stop-action" prosecutions. Hobbs,175 S.W.3d @ 779-81;
Zuliani,383 S.W.3d @ 299[citing, Huffman,supra., Fernandez v. State,316 S.W.3d
354,369(Tex.App.-Ft. Worth 2010 no pet)(dissent) and Ervin,supra.]. Accordingly,
under a straight Federal Blockburger test as applied, in Severns, the "clearr
expression" test of the "modified" Blockburger analysis. ,ag±Led,3n; Texas caselaw,
OR THE "Ervin-factors" test, Appellant's instant conviction for evading arrest
by use of a motor vehicle as a deadly weapon while fleeing from Deputy Azwell,
as the lesser degree of felony and second count alleged in the indictment,
must be vacated and dismissed. Ex parte Caravos,203 S.W.3d 333,339 & n.8(Tex.
Crim.App.2008); and see, Zuliani,383 S.W.3d @ 300(retaining deadly conduct
conviction, vacating reckless driving conviction); Reece v. State,03-03-00490-
CR, 2004 Tex.App.LEXIS 6815(San Antonio 7-19-04 pet refd)(State admitted to
Double Jeopardy, by counts of aggravated assault on a public servant and aggra
vated assault being one count included within the other count; retaining aggra
vated on public servant conviction, vacating aggravated assault conviction);
U.S. v. Miller,576 F3d 528,531(5th Cir.2009)(single action of attempting to
run over two officers, could'nt support two seperate convictions, citing cases
as settled law) J'.USCA 5; Tex.Const.,Art:I>§14; Sotelo /suprav; ,•: -Tex> r.A'pp. p:,47 $1.
4. LEGALLY INSUFFICIENT EVIDENCE OF THE USE OR EXHIBITION OF A DEADLY
WEAPON MOTOR VEHICLE, BECAUSE NOONE WAS SHOWN TO BE ACTUALLY ENDANGER
ED BY PROXIMITY TO APPELLANT'S DRIVING, REQUIRING DELETION OF THE
DEADLY WEAPON FINDINGS FROM THE EVADING ARREST JUDGEMENT OF CONVICTION
Facts
In trial, Deputy Azwell and Chief Hadrych testified Appellant's driving
while they pursued him was "reckless", R.R.,v.5,p.79; R.R.,v.6,pp.66-67, since
he "crossed into oncoming traffic" and "perhaps seven to ten vehicles... had
to pull over to the shoulder to get out of the way". R.R.,v.5,pp.82-83. This
was the State's position in arguing to the Court of Appeals initially. See
02/10/14 filed State's Brief,!. However, the Court of Appeals did not adopt
this as fact. See, Appx. 38 - 05/21/14 Mem.Pp.,6. Chief Hadrych speculated
Appellant's reckless driving "could have caused someone serious bodily injury"
or "death", R.R.,v.6>;,p.67, and Deputy Azwell claimed Appellant's driving had
11
"threatened" him when Azwell cornered Appellant on a dead end street and Azwell
claimed Appellant drtfve directly at him while "continuing his flight" or "evad
ing". R.R.,v.5,pp.90,100. In closing arguments the State emphasized that Azwell
has not been the same since Appellant drive directly at him and how much fear
Azwell was in as a result. R.R.,v.9,p.114. However, noone testified during
this entire trial that Appellant's driving was "actually dangerous" nor/of
any person's other than Azwell's proximity to Appellant's driving conduct. While
the State relies upon Deputy Azwell's in-car video camera evidence submitted
in trial to support the use of Appellant's vehicle as a deadly weapon, 02/10/14
filed State's Brief,1,8, and argued in closing that this evidence showed the
Appellant "passed that person in the intersection" and "tries to pass an 18
wheeler, and you can see at least four or five vehicles have to pull out of
the way", R.R.,v.9,p.1$9, in fact Deputy Azwell's incar video camera evidence
fails to show any other person being actually endangered by close proximity
to Appellant's alleged reckless driving conduct. R.R.IO-State's Ex.204(video).
Arguments
A.
First, Deputy Azwell was never threatened by Appellant's driving directly
at him, because as argued elsewhere in this brief Deputy Azwell has been shown
to have falsely and perjoriously testified in regard to this factual allegation.
His testimony must be discounted as a result, Therefore, Deputy Azwell cannot
serve as an evidentiary basis for supporting Appellant's driving dangerously
as opposed to merely recklessly for the evading arrest deadly weapon findings.
B.
I. Assuming for purposes of argument that Deputy Azwell's testimony can serve
as an evidentiary basis for the evading arrest by use or exhibition of a deadly
weapon charge, then his own testimony, and the incar video camera evidence proves
Appellant did not place Deputy Azwell in actual danger by driving directly
at him in this case, but instead Deputy Azwell ran from a safe location behind
his car into Appellant's vehicle's path.; from where he shot Appellant, then
jumped out of Appellant's vehicle's path again. Azwell unreasonably created
the encounter that ostensibly justified his use of deadly force to protect
himself by shooting Appellant, in violation of USCA 4. Swann v. City of Richmond,
498 F. Supp. 2d 847, ,..-, 863(E.D.Va.2007) [quoting, Estate of Starks v. Engart,
5 F3d 230,232,234-35(7th Cir.1992], affd, 309 Fed.Appx.757, 2009 WL 180291.
Independant of the 4th Amendment violation, this factual scenario must neces
sarily prove insufficient evidence of threatening Deputy Azwell by driving
dangerously. See, Brown v. State,183 S.W.3d 728,733(Tex.App.-Hous.[1 Dist.]
H-23-05 reh'g denied 1-4-06)(finding no record testimony "the gunshot caused
the vehicle to swerve in any direction, suggesting that appellant drove straight
for the exit", was held to be evidence sufficient to support a lesser included
offense charge on reckless driving, in an aggravated assault on a public servant
conviction's appeal, finding error in denying that requested instruction, but
no harm due to similar "deadly conduct" lesser included offense charge being
given to uphold conviction).
a. The incar video evidence irrefutably establishes that in four (4) seconds
Deputy Azwell jumped out of his car when you hear his door slamming on the
video'a audio portion followed in four (4) seconds by the shooting of Appellant,
12
and according to Azwell's testimony when he exited his vehicle, he ran into
a "car-length-and-a-half space between the rear of his car and a resident's
vehicles also parked there, R.R.,v.5,pp.86-87, Appellant drove directly at
Azwell, id.,p.88, Azwell drew his weapon, shot at Appellant and then "back[ed]
out of the way ... to take coyer behind [Azwell's] vehicle", id.,pp.88-90; also
see,, R.R.,v.6,pp.40-41| Appx., 1(AzveJi- testimony)•. - --There'-is NO.evidence.lAppe.iiaW:
airaedfhis car in any other; direction ±han the space between the rear of Azwell's
car and the resident's vehicles also parked there. Brown,183 S.W.3d @ 733.
"3. On this record, there is insufficient evidence kg provel Appellant used
his vehicle as a deadly weapon against Deputy Azwell. But for Deputy Azwell
running into the car-length-and-a-half space Appellant was already driving to
wards, no danger or threat to Deputy Azwell could have occurred. See Penal Code
§6.04(a)("Concurrent Causation"). Section §6.04(a) applies to cases like this
Appellant's. Ferrel v. State,55 S.W.3d 586,590-91(Tex.Crim.App.2001)(aggravated
assault case). Section 6.04(a) makes clear that Appellant is not criminally
liable here because Deputy Azwell's conduct alone of jumping in front of Appel
lant's already aimed car was clearly sufficient by itself to result in his
being endangered by Appellant's driving, and Appellant's driving alone while
-aimingv directly; for the unobstructed space:betw©enC«eMclesvvtolescape was::..insu£<-
ficienti,to :fehdahgeriAzwell here. Cf: Daniel v. State,577 S.W.2d 231,,235-26(Tex.
Crim.App.1979)(on reh'g). Alternatively, there is insufficient evidence the
Appellant used or exhibited his vehicle as a deadly weapon, as the uncontrovert-
ed record evidence shows at the last second Deputy Azwell moved into the path
of Appellant's already moving and aimed vehicle, drew his weapon and shot the
Appellant all within seconds. Compare thistoDobbs v. State,07-12-0376-CR,
07-12-0377-CR @ **2-4(Tex.App.-Amarillo 3-20-13 reh'g ovr'ld) where it was
unsuccessfully argued the officer "could have avoided the threat's fruition,
in that he ;could have escaped from the car's path", which was overruled by
the Court refusing to impose a duty on an officer to avoid the results of the
threat before an assault can happen. Here, Deputy Azwell did not merely "stand
his ground and shoot Appellant - he unreasonably created his encounter with
Appellant's vehicle deliberately, to ostensibly justify shooting Appellant
while unarmed and fleeing arrest. Swann,498 F.Supp.2d @ 863; Brown,183 S.W.2d @
733(finding although police officer was fairly close to appellant's vehicle,
the record suggested appellant drove straight for the exit). .- Please note that
record shows this Appellant only has one eye, which supports his not seeing
Deputy Azwell's last second move into his car's path. Gfj, Self v. State,2004
Tex.App.LEXIS 7352(Tex.App.-Dallas 200£J(discussing evidence of not! seeing
officer and not aiming at officer).
C.
I. Third, the State's arguments about other persons on the road amount to
no more than hypothetical endangerments, which is insufficient to support the
deadly weapon finding. Cates v. State,102 S.W.3d 735,738(Tex.Crim.App.2003).
In Appellant's case the State is merely stacking multiple hypothetical of
some other person somewhere on the roadway, also barred by the Cates holding.
Additionally, "proximity is necessary to show that actual danger existed",
which the State presents insufficient evidence of in the record. Drichas v.
State,219 S.W.3d 471,475(Tex.App.-Texarkana 2007)[citing, Drichas v. State,175
S.W.3d 795,799(Tex.Crim.App.2005).
13
2. All the testimony and evidence of Appellant drivinq "^recklessly" does
not prove he drove "danqerously", an essential factual showinq to the State's
burden of proof. Murphy v. State,01-C8-00763-CR,01-08-00659, 2010 Tex.Acp.LEXIS 2953(Tex.
flfp.-Hcus[l Dist] 4-22-10 pet refd 2x)[citinq, Sierra v. State,280 S.W.3d 250,255(Tex.
Crim.App.2009)](evading arrest's conviction analysis, distinguishing between
"reckless driving" and "dangerous driving"). Here, the Beaumont Court of Ap
peals implicitly rejected the the State's factual claims that this Appellant
crossed, into oncoming traffic and vehicles :.:.had; to pull over to the shoulder
to let Appellant and his pursuers pass, by not recoqnizing those claims in
it's opinion which does recognize other fact issues such as traffic violations
and unsafe driving generally. However, the deputy's incar video evidence does
show at between 3-4 minutes into the video Deputy Azwell trying to pass the
Appellant .bby trying to cross into the other lane of traffic which Appellant
does foil each time, hence the deputy is drivinq dangerously! When Appellant
is driving on the wrong side of the road, there is no car coming at him in
close proximity, and there is no person anywhere near to close proximity to
Appellant's driving so as to convert it into "dangerous" driving as required.
3. The officer's testimonies about what "could have" happened is mere specula
tion, not competent evidence, hence cannot be relied upon to prove discretely
or with other evidence any dangerous drivinq. Rabb v. State,387 S.W.3d 67,72-
73(Tex.Crim.App.2012). And Deputy Azwell's extensive testimony about how he
felt "threatened" and his. whole life changed after this event, beyond beinq
self-serving and incredible on this record, is irrelevant as a matter of law.
Dobbins v. State,228 S.W.3d 762,766-67(Tex.App.-Hous[14 Dist]2007)[citinq Olivas
203 S.W.3d @ 342-51].
4. While driving the wrong way on a highway into oncoming traffic during
a police chase would be sufficient evidence of dangerousness, Drichas,175 S.W.3d
@ 798, neither the Drichas case nor this Appellant's case rises to that level
of dangerous driving. Drichas,219 S.W.3d @ 475-77(on remand, finding there
was "some traffic somewhere around" the police chase was insufficient to support
deadly weapon finding; "the record does not demonstrate ... the pursuing offi
cers ever encountered any motorist in such a way as to place another in actual
danger."; rev'g and remanding for new punishment trial). Here, the incar video
exhibit shows no evidence of Appellant's "proximity" to another person or motor
ist to prove "actual danger existed, even thouqh no person was actually endan
gered." id. @ 475[citing, Drichas,175 S.W.3d @ 799](bold added). To hold in this
case the Appellant's drivinq satisifed the danqerous proximity requirements
of Code of Crim.Proc.Ann.art.42.12,§3q(a)(2) in this context results in a con
struction allowing any fleeinq motorist to be charged with using a vehicle
as a deadly weapon virtually every time an evading arrest offense is committed,
which is contrary to the clear and unequivocal languaqe of the Texas Court
of Criminal Appeals in Drichas,175 S.W.3d @ 799. Drichas,219 S.W.3d @ 476 n.5.
Appellant argues here the standard requiring proof beyond a reasonable doubt
b? presented in support of every fact necessary to convict is less than that
required by Due Process. In re Winship,397 U.S.358,364(1970); USCA 14. Because
there is insufficient evidence of any person's "proximitiy-f" : to"Appellant's
drivinq causing "actual danger" to a person and the record shows not even a
close call to any kind of collision in this case, there is reasonable doubt
on the affirmative findinq of a deadly weapon in this case, requiring deletion
of the deadly weapon findinq from the jevadinq^arrestJ^udgement and remand to
the trial court—for a~hew"^TMishmeht^trial_hear"inq. Drichas,219 S.W.3d @ 477
(requiring this result w/o dispute from the State); Tex.R.App.P.44.2(a),47.1,49.
14
5. LEGALLY INSUFFICIENT EVIDENCE ALLEGED "SYRINGES" WERE AFFIRMATIVELY
LINKED TO APPELLANT AND/OR WERE "RELATED" TO THE ALLEGED "POSSESSION
OF A CONTROLLED SUBSTANCE" OFFENSE, REQUIRING REVERSAL OF THE TAMPERr-
ING WITH EVIDENCE CONVICTION AND AN ACQUITTAL ORDER UNDER DUE PROCESS
Facts
I. Count III of the indictment alleges Appellant:
"knowing an offense had been committed, to wit: Possession of a Con
trolled Substance, intentionally and knowingly alter, destroy or
conceal a thing, to wit: Syringes, with intent to impair its avail
ability as evidence in any subsequent investigation or official pro
ceeding related to the offense." OR.,39(bold added).
On appeal, the State argued Appellant repeatedly threw drug paraphrenalia out
his car's windows while being pursued by police, interestingly completely dis
counting Deputy Azwell's purported eyewitness testimony affirmatively linking
Appellant to the alleged thrown "Syringes" in this case, relying on hearsay
testimony only. Compare, 02/10/14 filed State's Brief,1-2(relying only upon the
hearsay testimony of Off:'s.Baithzar, Sohmitt &;EKef±dn @ 1".R. ^.•6Vpp£B,lG0yiS,112-16
with., Appx*,40 -r 04/21/14 Mem.Op.,8("According to Deputy Azwell, while pursu
ing Martin's vehicle, he saw Martin ;throw a spoon and several syringes out
of his car's window."). Officers Delavarb, Balthazar and Hadrych testified as to
what they heard for police radio traffic on the air, and speculated as to what
if anything Appellant was throwing out his window and why, R.R.,v.6,66-69,88,100
and civilian witnesses testified as to items being thrown out the car window
without specifically identifying any particular item being thrown at the time,
R.R.,v.6,pp.l00-01,176-77, which trial counsel Mr. Boyd objected to on hearsay,
no affirmative link and irrelevance grounds, 'and.... the trial court overruled.
R.R.,v.6,pp.103-04,120-21; R.R.,v.14,p.23.
Q. Crime Scene Investigator ("CSI") Everton responding to 'the police radio
statements about Appellant throwing items out his car's window, got his "narcot
ics trained canine" and did a systematic search-. 100 yards of' roadside sections
of the pursuit route at a time,.. '.uMil the dog found "anything with a residual
odor of a narcotic" which turned out to be two different appearing syringes,
a syringe plunger and a blue lighter, all found at different locations. Compare,
R.R.,v.6,108-09,112,115, with, App*..55-57-State• s Exs.59-60,78-79,210-14r "..;.. ,csas:
Everton admitted he could not connect any of these found items to Appellant,
other than'they contained some unspecified narcotic. R.R.,v.6,pp.120-21,151-52.
However, there was no evidence Of lab testing for "residue" in any of these
roadside found items constituting a "controlled substance", meaning CSI Everton's
connection testimony amounts to mere speculation. Compare, R.R.,v.6,pp.151-52
(guesing syringes contained blood),154-55(speculating small amount of residue
in sofhe baggies found in Appellant's pocket was "narcotics"), with, R.R.,v.6,pp.
122-23(testifying there is "a clear liquid substance" in a syringe, but never
testing same for being a controlled substance"). While the State argued the two
roadside found syringes were the same style as two syringes found in Appellant's
car, R.R. ,v.5,pp.151-52, the evidence shows these s.yringes look completely
different.: Compare, Appx. b'f :T State's Exs. 106-07(2 syringes found in Appel
lant's car, are, old,- usedrw/beht n^'edies^, w/Ap'px.56-57 —State's Exs.59(found road-
side diabetic unused, marked, capped, new syringe),78(extremely different look
ing turkey baster type of syringe). The State also argued "the syringes were
evidence he possessed cocaine", R.R.,v.?,p.84, "the needles he's throwing out,
it's the same ones he has in the car. He's using drugs. And he's getting rid
15
of the ones he's already used", R.R., v. ^, pp.. 120-21, speculating on top of this
unsupported basis, "Why would somebody who's driving down a freeway want to
get rid of a syringe ... if it was" a syringe, unless "if it has any type of
contraband; cocaine, heroin, I mean, they'd obviously want to throw it, to
destroy it" because it "could" be evidence of "use of narcotics". R.R.,v.6,p.117
(bold added). But no State witness ever said anyone tested any alleged roadside
found syringes for residual narcotics or controlled substances of any kind,
and further never even tested any alleged roadside found syringes for finger
prints. R.R.,v.6,pp.l22-23(CSI Everton states "a clear liquid substance" is in 1
syringe),131(CSI Wright testifies of taking syringes "back to the crime lab"),
151-52,154-55(CSI Wright testifies admitting to not forensically testing any
syringes, while guessing there was blood in one of them).
3. Considering Deputy Azwell falsely and perjoriously testified the Appellant
was, driving directly at him in trial, in concert with CSI Wright's suppression
of the existence of the "front-view" laser test photo evidence when he testified
in trial as to his conducting of those tests, then the Court of Appeals original
Memorandum Opinion finding the "record" and Deputy Azwell's testimony alone,
supported the inference that Appellant had thrown the found syringes from his
car,' means had the court of appeals taken into consideration this irrebutable
evidence of Deputy Azwell's perjury, surely it would not have relied upon Deputy
Azwell's testimony alone to analyze evidence sufficiency as it did so far.
Arguments
A person commits the offense of tampering with evidence if, knowing an
offense had been committed, he alters, destroys, or conceals any record, docu
ment or thing with intent to impair its ... availability as evidence in any
subsequent investigation or official proceeding related to the offense. See,
Penal Code §37.09(d)(Vern's Supp.2011); Thornton v. State,No.PD-0669-13, Slip
Op.1-2 n.l(Tex.Crim.App.4/2/2014). The task is to determine if the record evi
dence could reasonably support a finding of guilt beyond a reasonable doubt,
by viewing the evidence in the light most favorable to the State, and deciding
whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Thornton,Slip Op.24-25 & nn.66,67,
quoting, Jackson v. Virginia,443 U.S.307,318-19(1979); Rabb v. State, 387 S.W.3d
67,70-73(Tex.Crim.App.2012)(same).
A. "Syringes" Are Not "Evidence" "Related to the Offense" of "Possession
of a Controlled Substance" Alleged, Requiring Reversal and Rendition
I. Throwing syringes out one's car window can never be, by itself, evidence
"related to the offense" of "Possession of a Controlled Substance" which is
the allegation in Appellant's indictment. See Health and Safety Code §481.115-
§481.118(Vern.Supp.2011)(possession of controlled substances laws in Texas).
The plain language of §37.09(d) requires this indictment's alleged "Syringes"
to be evidence that is related to the offense of possession of a controlled
substance, which it should be obvious that a syringe, by itself as the state
eijearly presents in the case at bar, fails to prove any element of the offense
of possession of a controlled substance. The entire legal theory of this prose
cution is legally invalid, requiring evidence insufficiency relief. Ex parte
Perales,215 S.W.3d 418,420(Tex.Crim.App.2007); Deltenre v. State,808 S.W.2d»97,
101-02(Tex.Crim.App.1990).
16
A.< While throwing syringes out of a car window might be evidence related to
the offense of possession of drug paraphrenalia, Thornton,Slip Op.4 & n.8(find:.-
ing officers arrest Thornton for possession of drug paraphrenalia, for his
dropping of a crack pipe, under Tex.H.S.O§481.125(a)), Gaston v. State,574
S.W.2d 120(Tex.Crim.App.1978)(syringe case), in the instant prosecution the
State waived any prosecution against Appellant for his conduct being "related
to the offense" of "possession of drug paraphrenalia" by alleging his conduct
was "related to the offense" of "possession of a controlled substance", which
in this as in other cases is a fatal defect. See, Rabb,387 S.W.3d @ 72-73(State
pled "destroyed" only, but only proved "concealed", requiring reversal for
insufficient evidence); Pannell v. State,7 S.W.3d 222,224(Tex.App.-Dallas 1999)
(State pled §37.09(a)(1) facts, then only proved §37.09(d)(1) case, requiring
reversal for insufficient evidence). The case at bar requires the same result.
Additionally, the Court of Criminal Appeals has stated "evidence of a person
throwing down contraband during a police pursuit ... is insufficient, by itself,
to constitute either concealment of attempted concealment." Thornton,Slip Op.27
n.77. Appellant's alleged conduct falls under this statement of the law, and
for that reason should support finding insufficient evidence to convict him.
Further, even if the evidence somehow supported finding the roadside found
syringes were thrown down by this Appellant, "Syringes" are neither illegal
nor contraband under Texas law. It is judicially noticable that syringes are
available without a prescription in any Texas pharmacy. Certainly, "Syringes"
are not a "controlled substance". The State's argument that the found "needles"
are the same as the two found in Appellant's car, although this claim is con
tradicted by the State's own trial exhibits which show them to be very differ
ent looking syringes, is simply irrelevant because a "syringe" is not "related
to the offense" of possession of a controlled substance. The State struggles and
strains'"-on this record, apparently trying to prove tampering with "needles",
to make unavilable as evidence against "using drugs" or using "syringes" or
perhaps littering, which is not a cognizable legal theory under the plain lan
guage of this statute. Indeed, the record is full of State wrfrftess testimonies
speculating about how throwing syringes out a car window, if this Appellant
threw syrfftijes out a ccar window, might constitute this offense, which requires
an insufficient evidence holding. Rabb,387 S.W.3d @ 72-73. Texas courts have
criticized this statute in operation. Thornton,Slip Op.27 n.77(suggesting the
TCCA author of the Court's opinion might have found no evidence in that case);
Gaitan v. State,393 S.W.3d 400,402(Tex.App.-Amarillo 12/17/12)(similar lament).
~-,3. To hold the. syringe v.evidences.found on .the roadside in the instant case,
is legally sufficient :evidenee ',Qf.. •the Offense of- tampering, with "Syringes"/•
alleged to be "relacea to the offense ... of possession of a controlled sub
stance" under Penal Code §37.09(d)(1), would nullify the "related to the offense"
statutory element to this law, renderring this phrase useless, which is contrary
to Texas law. L.P. v. State,—-S.W.3d ,2009 Tex.App.LEXIS 5467(Tex.App.-Austin
7/14/09); Badgett v. State,42 S.W.3d 126,140(Tex.Crim.App.2001). Additionally,
finding "syringes" are evidence of "possession of a controlled substance" fails
to give effect to the particular or technical meaning of "controlled substance",
requiring reversal, of conviction and rendition of an acquittal. Deltenre v.
State,808 S.W.2d 97,101-02(Tex.Crim.App.1990)(holding "detention office?5 could
not meet definition of "peace officer" under statute of conviction; reversing
and acquitting appellant).
17
B. Insufficient Evidence of an "Affirmative Link" Between the Roadside
Found "Syringes" and the Appellant, Requiring Reversal and Rendition
I, Similar cases under this statute involve an officer that indisputably
witnessed the alleged evidence being thrown. Thornton,Slip 0p.4(officer "never
lost sight" of crack pipe "from the moment the appellant removed it from his
pocket" until the officer retrieved it from the street); Pannell,7 S.W.3d @ 224
(officer observed marihuana cigarette thrown from car window during traffic
stop); Blanton v. State,2006 Tex.App.LEXIS 6367(Tex.App.-7/21/06)(officer ob
served two baggies thrown from car window during traffic stop). In the instant
case, Deputy Azwell's purported affirmative link testimony initially accepted
as sufficient by the Court of Appeals has now been shown to have been renderred
unreliable due to his having committed perjury by false testimony in Appellant's
trial involving the count I aggravated threat of a public servant charge, and
even accepting Deputy Azwell's affirmative link testimony at face value is
irrational to conclude beyond a reasonable doubt this provides sufficient evi
dence to demonstrate an "affirmative link" between the State's alleged roadside
found "Syringes" or other items and the Appellant under the facts of this case.
a, Officer Balthazar testified Appellant "threw something" out his window,
R.R.,v.6,97-98, Officer Schmitt testified what another person said who was
not present in the trial court (i.e., hearsay) about a glass pipe being found,
R.R.,v.6,100, officers Delavaria and Chief Hadrych testified about what they
heard on their police radios about the suspect having "thrown some items out
his window" speculating that it may be "some kind of evidence". R.R.,v.6,66,
68-69,88, Civilians Dina Walker and Sandra Courtney testified to seeing "an
item", "another item being thrown", "something flew out" the car window which
they jtoefc "didn't know" what they were at the time but speculated "whatever
was thrown out might be important". R.R.,v.6,176-77,182-83/E'|en Deputy Azwell
reasserted his vague police radio statements in trial, that^'lsome items" were
being thrown out the car window while he was in pursuit, follbw^dvBy his uncor
roborated but convenient recall only testimony that he saw a;spoon-Sand syringes
being thrown specifically. R.R.,v.5,79-80; Appx.38-40 - 5/21/14 Mem:Op.,8. But
distinguishing the case at bar from the above cited sifariilar cases, is the
fact that Deputy Azwell lost sight of whatever he claimed was thrown out the
Appellant's car window, since he testified as to continuing with his pursuit
of Appellant's car until he cornered him on a dead end and shot him. id.,6-7.
3. Under Penal Code §37.09(d)(1), the State must*prove beyond a reasonable
doubt an "affirmative link" between a purportedly roadside;found r|em of alleged
evidence, and the appellant's having thrown it from his car. See Favela v. State,
13-12-003970-CR, 2012 Tex.App.LEXIS 5691(Tex.App.-Austin 5/8/13)(§37.09(d)(l)
affirmance, affirmatively linking thrown rifle foundJan iraadside to appellant,
by finding it was taken from the victim's truck and was linked to other prop
erty that was found in appellant's vehicle); and see, Verduzzo v. State,24 S.W.3d
284,286(Tex.App.-Hous.[14 Dist.]2000)(controlled substance 'actual transfer'
case, where there was no evidence appellant ever touched the alleged controlled
substance; rev'd & acquitted); Roberson v. State,80 S.W.3d 730(Tex.App.-Hous.
[1 Dist.]2002)(24 grams of drugs found in and around car, was insufficient
to link driver to it's possession, as there was a passenger in the car also).
Even crediting Deputy Azwell's testimony as reliable, it is mere speculation
that the Syringes found by CSI Everton on the roadside, after his systematic
search of 100 yard wide sections of the pursuit path's raradside, are either
the same syringes as what the Deputy said he saw, or the same syringes as found
18
in the Appellant's car. The State's arguments that the roadside found syringes
are the same as the one's found in Appellant's car, is contradicted by the
record evidence. The roadside found syringes were found at different locations,
and appear to be two totally different kinds of syringes, in that one looks
like a new, unused, capped, diabetic's syringe which should be judicially not-
icable, and the other appears to some kind of a turkey baster syringe or perhaps
a veterinarian's horse needle, much larger and different from the diabetic
syringe. Additionally, these two very different looking syringes, look very
different indeed from the State's argued Appellant's syringes found in his
car which look to be old, very used, bloodstained, and unusable with bent needle
tips. Hence, the State's primary argument in trial is contradicted by the record
of State's exhibits. And even if this were'nt an issue, as argued in Argument
A,infra., Syringes are not illegal, not contraband, are available without a
prescription in Texas, and are certainly no evidence of committing the offense
of "possession of a controlled substance" as this indictment meritlessly alleges
in this case. Furthermore, there was testimony in this case that the area where
this police pursuit occured had too much traffic on it lately, and 2 witnesses
were leaving that area on this day together because they "just didn't feel
as safe as I used tub ... because of the speed vehicle eome around". R.R.,v.6,
174,181. Given that there are lots of speeding vehicles driving around this
neighborhood lately, the State simply does not know and cannot know who spec
ifically threw down their roadside found syringes and other items. Anyone of
tfie thousands of cars driving by this area could have thrown the found items
out of their car windows, instead of this Appellant. The real question in this
case is why didn't the State's CSI witnesses test for controlled substance
residue they testified they believed was in the roadside found syringes, and
why didn't they forensically test those syringes for fingerprint evidence?
Without such affirmative link evidence, under the facts of this case, the State
simply cannot "affirmatively link" this Appellant to any raadside found syringe
at issue in this case, even with Deputy Azwell's unreliable testimony in this
case. The record being rife with mere speculation that these roadside:.!found
syringes^ and other items were thrown by this Appellant, constitutes legally
insufficient evidence of an "affirmative link" requiring reversal and rendition
of an acquittal. Rabb,387 S.W.3d @ 72-73; Cf: Favela,supra.
O Conclusions
There is legally insufficient evidence contrary to Due Process, that:
(1) the roadside found syringes were "related to the offense" of "possession of
a controlled substance", (2) any "controlled substance" was ever thrown out
of Appellant's window or otherwise tampered with, (3) anyone witnessed this
Appellant throw out of his car's window any specifically alleged "Syringe",
and (H) the alleged roadside found "Syringes" were "affirmatively linked" to
this Appellant. Accordingly, Appellant is entitled to a reversal of his Tamper
ing With Evidence conviction and rendition of a judgement of acquittal. See,
USCA 14; Jackson,443 U.S. @ 319; Rabb-,387 S.W.3d @ 72-73; Rannell,7 S.W.3d
@ 224: AND SEE, Perales,215 S.W.3d @ 420; Deltenre,808 S.W.2d @ 102; SEE ALSO,
Rodriguez,129 S.W.3d @ 562-64(in pro-se motion for rehearing context, after
appointed appeal counsel obtained an affirmance of conviction, pro-se appellant
[this writer] raised new argument for first time on insufficient evidence,
obtaining a Jackson reversal and acquittal; court ordered previously unpublished
court appointed counsel obtained affirmance opinion published together with
pro-se motion for rehearing opinion's granting relief result); '.Tex.R.App.P.47.1,.
19
6. LEGALLY INSUFFICIENT EVIDENCE OF USING A VEHICLE TO "THREATEN" A
PUBLIC SERVANT WHILE "LAWFULLY" DISCHARGING HIS DUTY BASED ON INDEPEN-
DANT DUE PROCESS VIOLATIONS OF TRIAL COURT FALSE TESTIMONY, SUPPRESSED
EVIDENCE, PROSECUTION'S KNOWING FAILURE TO CORRECT FALSE TESTIMONY
(USCA 14) AND/OR UNREASONABLE SIEZURE OF APPELLANT BY SHOOTING HIM
FOR UNARMED EVADING ARREST BY VEHICLE (USCA 4; PENAL CODE §9.51(c))
Facts
h- Appellant incorporates by referrence as if fully pleaded herein, his pre
viously presented Issue No.Four facts and argument B, supra..
a. Deputy Azwell testified that during his police pursuit of Appellant, when
he decided to continue vehicular pursuit onto Bates Road, he knew it was a
dead end street, saw Appellant slowing down and presumed Appellant would stop
on Bates Road to continue fleeing on foot. R.R.,v.5,83-84. The incar video CD
evidence record shows vehicular pursuit of Appellant' around one circle through
a Bates Road resident's front lawn, Deputy Azwell parking his patrol car on
the resident's driveway at it's street end facing out with resident's vehicles
already parked there at the opposite end nosed up against a garage, while the
Appellant continues freeing, pr, evading'*around, a second circles through the
front lawn.. R.R., v. 5,74-75,85-86(testimonies of Chief Hadrych and Deputy Azwell).
Deputy Azwell's chosen parking location created a "car-length-and-a-half" space
between the rear of his patrol car and the rears of the resident's cars parked
nosed up against their garage. Appx.l - R.R.,v.5,86(testimony of Deputy Azwell); .
R.R.,v.lO - State's Ex.215("Lieca Scan" drawing of driveway, resident's cars).
3( The incar video CD evidence irrefutably proves, Deputy Azwell exited his
patrol car when you hear on the CD audio his door slamming, and exactly four
seconds later he is shooting at Appellant. OR.180; R.R.,v.lO - State's Ex.204.
In those four seconds, it is Deputy Azwell's heretofore uncontroverted testimony
when he exited his patrol car he ran into the "car-length-and-a-half" space
between the the rear of his car and the rears of the resident's cars, Appx.l-
R.R.,v.5,86-87, was feeling his own "adrenaline", R.R.,v.6,16, at which point
Appellant^ tried to run him over by driving directly at him as the chase was
ending, so he fired three shots at Appellant resulting in Appellant's surrender.
Appx.37-38 - 5/21/14 Mem.Pp.,5-6; Appx.l - R.R.,v.5,88-90(Azwell's testimony).
Both the State and Deputy Azwell have taken the position that after Appellant
was shot by the deputy, he "continued to evade" "straight" through the "car
le n-gth-and-a-half " space between the cars parked on the driveway, and the
deputy "continued to pursue". Appx.l-R.R.,v.5,90; 2/10/14 State's Brief,2-3.
t» It is undisputed that Deputy Azwell's shots two and three were fired from
and into the side of Appellant's car, shot number three lodging into the passen
ger side window pillar between the front and reac doors, with shot number two
shattering the passenger side front window and hitting: Appellant in the chest.
Appx.1-5(excerpted trial testimony of CSI Wright and Deputy Azwell). All three
shots fired at the car appear to be aiming to kill Appellant, instead of simply
stopping the car, as they are all above the horizontal center line aimed at
Appellant, and nowhere near the tires. Appx.32,53,54, R.R.,v.lO, State's Exs.
201,176,179. Deputy Azwell's testimony there was no other level of force that
would have stopped a moving vehicle, Appx.2 - R.R.,v.5,97(Azwell testimony), is
irrational and self serving given he could have shot out Appellant's tires, but
2.0
chose, to try to kill the Appellant, and then dodged trial counsel's questioning
about the objective unresonableness of his shooting the Appellant. Appx.2 -
R.R.,v.6,16-18(Azwell's testimony).
5, Critically unrecognized to date are the facts that there is no evidence
Appellant was not aiming straight and directly for the "car-length-and-a-half"
space between Deputy Azwell's and the resident's vehicles to continue to evade,
necessarily meaning Deputy Azwell ran in front of Appellant's already aimed,
moving vehicle, shot Appellant and then jumped out of the way again without
being hit, all within no more than 2 seconds. See infra. In addition, Appellant
showed the jury he had only one eye by removing same as demonstrative evidence
during trial, so he may not have even seen the Deputy's purported 2 second
moves jumping in front of the car, shooting him, and then jumping out of the
way again. R.R.,v.9,37-38,41-42,47-48.
fc. Deputy Azwell falsely and perjoriously testified in trial the Appellant
tried to run him over by driving directly at him, the motive being to cover-
up his excesssive use of force in shooting this unarmed! Appellant from the
side:of-his;;fleeihg '-vehicle 3 times,.unjustifiably/!., hitting him in the chest and
causing Appellant's surrender. Appx.7-9(defense counsel's excerpted closing
jury arguments, R.R.,v.9,96,98,100), with, 2/10/14 filed State's Brief,9(recoq-
nizing main argument against count I conviction). Deputy Azwell's ^false and
perjorious testimony was that Appellant drove "directly" or "straight" at him,
as justification for shooting Appellant, moving out of the way at the last
instant, and barely missing getting hit himself. Appx.38-39,5/21/14 Mem.Cp.,6-7;
Appx.1-2 - R.R.,v.5,88-89; R.R.,v.6,19-20(Deputy Azwell's excerpted testimony).
7. The State's bullet-trajectory expert CSI Wright testified in trial that
Deputy Azwell's first shot went through Appellant's car's front hood, and ex
plained how he used a "laser test" to determine this bullet's trajectory AFTER
going through the front hood, but! then only explained this bullet's trajectory
BEFCRE going through the front hood in terms of it's VERTICAL TRAJECTORY to
confirm Deputy Azwell's general proximity to Appellant's car when the shot
was fired. Upon trial cousnel's cross examiniation, CSI Wright suppressed the
fact as to his personal knowledge of what his "laser test" results showed in
terms of it's HCRIZPNTAL TRAJECTORY to confirm whether Deputy Azwell was shoot
ing at Appellant from the front of the car as the deputy testified, or was
shooting from the side of the car as trial counsel was not just suggesting
but clearly arguing. Appx.3-5,7-9, R.R.,v.6,155-56,160-64,169-71(CSI Wright's
testimony exceprts), R.R.,v.9,96-112(trial counsel's closing jury arguments).
8 In trial, the State used as exhibits "side view" laser test photo results,
which only showed Deputy Azwell's general proximity to Appellant's car when
he shot into the front hood and then shot Appellant. Appx.32 - R.R.,v.10,State's
Ex.201. State prosecutors KNEW there were "front-view" laser test photo results
showing Deputy Azwell shot into the:.front hood from the side of Appellant's
car, contrary to Deputy Azwell's trial testimony, shown by the mere fact that
a prosecutor had to select from all the laser test photo results the "side view"
laser test photo results. Compare to, Appx.31 - Front-View Laser test Photo
Result. The State's own previously suppressed "front view" laser test photo
evidence conclusively and irrebutably ppoves Deputy Azwell falsely -•-wctestifi^'
tftatly Appellant was driving directly at him when he shot at Appellant, negating
criminal liability for driving directly at Deputy Azwell as an essential element
of the count I aggravated threat of a public servant charge in this case.
21
Arguments
?> A. Legally Insufficient Evidence
\. The statutory elements of the charged offense in this case are as follows-
(a) A person commits an offense if the person: ...(2) intentionally or knowingly
threatens another with imminent bodily injury, ... Penal Code §22.01(Assault).
(a) A person commits an offense if the person commits assault as defined in
§22.01 and. the person: ...(2) uses or exhibits a deadly weapon during the com
mission of the assault, (b) An offense under this section is a felony of the
second degree, except that the offense is a felony of the first degree if:...
(2) Regardless of whether the offense was committed under Subsection (a)(1)
or (a)(2), the offense is committed: ... (B) against a person the actor knows
is a public servant while the public servant is lawfully discharging an official
duty, ... Penal Code §22.02(Aggravated Assault). Here, the focus is on the
legal- insufficiency of the evidence to prove the Appellant intentionally or
knowingly threatened Deputy Azwell with imminent bodily injury by driving his
car directly at Deputy Azwell. An offender driving directly at an officer must
be proven beyond a reasonable doubt, and is a factual issue present in all
identical caselaw. Dobbs,supra.,2013 Tex.App.LEXIS 3050(finding sufficient
evidence^ on egregious facts of appellant "accelerated towards him. The officer
fired his weapon as the car approached and then jumped out of its path just
before it could strike him."): Dobbins,228 S.W.3d @ 765-66(finding evidence
sufficient as appellant drove directly at officer, then stoped at officer's
direction, then moved car forward striking officer); Whiddon v. State,10 - 06 -
00085-CR, 2007 Tex.App.,LEXIS 916(Tex.App.-Waco 2007)(finding evidence suffic
ient as Whiddon "attempted to evade the roadblock", then "drove his truck toward
the trooper, so that the trooper believed that Whiddon was going to run over
him amd. he feared for his life", "Whiddon would have hit the trooper if the
trooper had not moved out of the way; and that Whiddon veered away only after
the trooper shot out one of Whiddon's tires."); Baxter v. State,12-03-00042 - CR
2004,Tex.App.LEXIS 4861(Tex.App.-Tyler 5-28-04 pet ref d) (finding evidence suffi
cient as appellant "drove his car at [officer] Swan in an effort to escape.");
Brown v. State,11-03-00253-CR, ,2001 Tex.App.LEXIS 8479(Tex.App.-Eastland 10-28-04,
pet ref d)( finding evidence sufficient as officer "testified that appellant
drove his vehicle directly at him while he was standing outside his patrol
car, forcing [him] to have to jump out of the way to avoid being hit."); U.S. v.
Miller,576 F3d 528,529-30(5th Cir.2009)(evidence sufficient as appellant was
trying to escape by driving through a narrow gap between 2 officer's cars,
while the 2 officers were standing in that gap between cars having to jump
out of the way). There are no cases on the books finding evidence sufficiency
in this context when the officer deliberately jumps in front of a suspect's
moving vehicle, as occurred in this Appellant's case, as a pretext to shoot
the suspect. Here, Deputy Azwell stepped in front of Appellant's already aimed
moving vehicle, just 1-2 second before Appellant could drive through the space
between cars Azwell had created, hence Azwell himself unreasonably created
the "threat" encounter that ostensibly justified his shooting the Appellant.
These undeniable facts demonstrate a Fourth Amendment violation. Swann v.
City of Richmond,498 F. Supp. 2d 847,863(E.D.Va.2007)[citing, USCA 4 & Estate
of Starks v. Engert,5 F3d 230,232,234-35(7th Cir.1993)]. These undeniable facts
also, demonstrate insufficient evidence of threatening Deputy Azwell. Brown,183
S.W.3d @ 733(aggravated assault on public servant case, finding although the
officer was fairly close to the vehicle, there was no record testimony about
the vehicle swerving in any direction, suggesting the appellant drove straight
towards the exit, which supported a denied "reckless driving" instruction,
^Ut,finding error narmless as "deadly conduct" instruction was given). The same
22
basis for relief in Swann and Estate of Starks,and the same basis for finding
error in Brown, exists in the instant Appellant's case.; On this record, there
is legally insufficient evidence that Appellant "intentionally or knowingly"
"threaten[ed]" Deputy, Azwell "with imminent bodily injury", because of Deputy
Azwell's\own trial testimony that he stepped into the path of Appellant's car
1-2 seconds before snooping Appellant. There is no evidence in this record
that absent Deputy Azwell's deliberately jumping in front of Appellant's car,
that Appellant's car would've somehow still been £imed, directly at the deputy.
There is no evidence that as Appellant drove through the resident's yard the
second time, he was not aiming for the car-length-and-a-half space between
Azwell's vehicle and the resident's vehicles. The only evidence in the record
shows Appellant's driving was "straight" if we are to believe the State's inter
pretation of the facts, and "directly" if we are to believe Deputy Azwell's
interpretation of the facts. R.R.,v.5,88-89; Appx.,l(same). -
a. Further supporting finding for the Appellant is Penal, Code §6.04(a), the
"Concurrent Causation" statute, which reads: "A person is criminally responsible
if the result would not have occurred but for his conduct, operating either
alone or concurrently with another cause, unless the concurrent cause was clearly
sufficient to produce the result and the conduct of the actor clearly insuffic
ient ." Section 6.04(a) applies to aggravated assault cases, and makes clear that
the Appellant is not criminally responsible if Deputy Azwell's conduct alone
of deliberately running right in front of Appellant's already moving and aimed
car was sufficient to cause the result of Deputy Azwell being "threaten[ed]"
by Appellant's driving, and Appellant's driving alone aimed not for Azwell
but for the space between vehicles before Azwell ran into that spa'ce was clearly
insufficient to result in Azwell being threatened. Cf: Daniel v. State, 577 S.W.2d
2^31,235-36(Tex.Crim. App. 1979) (on reh'g). Under this statute, Appellant should
also be acquitted, id. @ 236(dissent). It was error for the court of appeals
below to "focus solely" upon Appellant's driving directly at Azwell, while
"ignoring the fact that because of" Azwell's running directly in front of the
Appellant's car, this is the only reason Deputy Azwell could have been arguably
threatened as alleged. E.g., Farrel v. State,55 S.W.3d 586,590-91(Tex.Crim.App.
2001)(rev'g court of appeals granting relief, holding it was error to "focus
solely on the impact from the blow of the beer bottle - ignoring the fact that
because of that blow McManus fell back, hit his head on the ground, and died.").
3, Compare this case to Dobbs,2013 Tex.App.LEXIS 3050 at **2-4, where it
was unsuccessfully argued the officer "could have avoided the threat's fruition,
that is he could have escaped from the car's path", which was overruled by
the court, refusing to impose a duty on the officer to avoid the results of
the threat before an aggravated assault can occur. The Court ruled, "Appellant
has cited us to nothing in the record suggesting that [the officer's] threat
of being struck was something less than menacingly near or impending if he
stood his ground on land he lawfully occupied." id. Here, Deputy Azwell was'
NEVER in threat of being struck by Appellant's car, had he not stepped right
in front of it's path and blocked his intended exit through the cars parked
on the driveway. By the time Azwell jumped in front of Appellant's car, it
was too late to change direction. According to the irt&r video, Appellant would
have only had 1-2 seconds to change direction before Azwell shot him, which
is unreasonable especially when you consider Appellant only has one eye. Clearly
no rational trier of fact could have concluded Appellant was aware of, but
consciously disregarded, a risk of imminent bodily injury to Deputy Azwell,
when- he drove directly for the space between vehicle to continue evading. In
23
addition the evidence is clear and uncontradicted that Appellant was merely
aiming his car directly for the space between the rear of Deputy Azwell's car
and the resident's cars all on the1 resident's driveway, when at the last second
and within no more than 2 seconds total Deputy Azwell ran in.between that space
and the Appellant's path, then away from that path, for the purpose of shooting
the Appellant. Therefore, for these reasons no rational trier of fact could
have concluded or inferred that Appellant used or exhibited his vehicle as
a deadly weapon by driving "directly" at the deputy as opposed to "directly"
towards the only exit available to continue fleeinq. See, e.g., Brown,183 S.W.3d
@ 733(recognizing and applying:: a validity of there being no evidence of the
appellant's vehicle swerving in any direction, suggesting he drovec straight
for the exit, even though officer was fairly close to the vehicle, and holding
it was error to deny .lesser included instruction on reckless driving); and,
cf: Teeter- v. State,13-07-00578-CR, 2009 Tex.App.LEXIS,5668 at *13(Tex.App.-
Corpus Christi 2009)(finding sufficient evidence of "intent" under egregious
facts, including that Teeter was aware of the risk of serious bodily injury
to the deputy, when he was driving in reverse with the deputy hanging out his
car's door, the big size of his truck and the deputy's proximity to the truck,
such (;hat a rational trier of fact could have found Teeter's truck to be a
deadly^weapon), affd in pert.part, rev'd on ether-grounds, 2010 Tex.Crim.App.LEXIS 1206(9/22/10),
writ denied, 2012 Tex.Crim.App.Uipub.LEXIS 3134(4/4/12); Self v. State,05-02-01963-CR, 2004
Tex.App.LEXIS 7352 at *7(Tex.App.-Dallas 2004)(finding sufficient evidence.of
intent, by weighing Self's testimony "that he did not see Cabbellero in front
of his vehicle; he did not 'aim' at Cabellero or intend to hit him; was not
intoxicated, angry, or even in a hurry; and that he waited for traffic to stop
before crossing to the median", as some evidence the vehicle was not used in
a manner capable of causing death of serious bodily injury),PDR dis'md 2005 Tex.
Crim.App.LEXIS 278(3/2/05), PDR ref'd 2005 Tex.Crim.App.LEXIS 973(6/22/05).
q, Finally, the offense of threatening a public servant as charged in the
instant case, has as an essential element that "the public servant is lawfully
discharging an official duty." Penal Code §22.02(a)(2)(b)(2)(B)(Vern.Supp.2009);
Gonzalez v. State,574 S.W.2d 135,136-37(Tex.Crim.App.1978)(rejecting old argu
ment overruled by new statute and caselaw); Infante v. State,397 S.W.3d 731,735-
36(Tex.App.-San Antonio 2-6-13)(rejecting argument that detention was "unlawful"
because Infante was not speeding due to officer's "impossible" speeding calcul
ations); Brock v. State,295 S.W.3d 45,52(Tex.App.-Hous.[1 Dist.]2009 rehg denied)
(holding assault is a lesser included offense of assault on a public servant,
and affirmative evidence in the record that negates the lawful discharge of duty,
element of the offense required requested lesser included offense instruction);
Kaez v. State,287 S.W.3d 497(Tex.App.-Hous.[14 Dist.]2009)(similar, civil case)..
The precise issue here is Deputy Azwell's UNLAWFUL discharge of his duty to
arrest the Appellant, by his unconstitutionally shooting Appellant as described
throughout this section, by jumping in front of Appellant's car for a second
or two long enough to shoot Appellant and then jump out of the way again un
reasonably creating the "threat" encounter proscribed by the statute that osten
sibly justified his shooting of the Appellant, which violates USCA 4. Swann,498
F.Supp.2d @ 863; Estate of Starks,3 F3d @ 232-35; Moser v. Bascilla,865 FTsupp.
249,251,255(E.D.Pa.l994). To be- clear, this is not a claim of Deputy Azwell
unlawful discharging!1 his duty to arrest the Appellant for evading arrest. Cf:
Infante,supra.. The precise issue is Deputy Azwell's unreasonable seizure of
Appellant by unjustifiably shooting him in violation, of USCA 4. Such a scenario
requires the conclusion that the opposite of a vital fact within the State's
24
burden of proof has been shown on the record, that is that Deputy Azwell did
UNLAWFULLY discharge his duty to arrest Appellant, establishing legally insuf
ficient evidence. Standards of Review in Texas,34 St. Mary's L.J.,159(2002).
5. Deputy Azwell's use of deadly force to shoot Appellant was grossly dis
proportionate to his need for self-defense or the defense of others, hence
was illeqal under Penal Code §9.51(c). Fraire v. City of Arlington,957 F2d
1268,1276-77(5th Cir.1992). Additionally, this violated, the Fourth Amendment:
"The intrusiveness of a seizure by means of deadly force is unmatch
ed. The suspect's fundamental interest in his. own life need not
be elaborated upon. The use of deadly force also frustrates the
interest of the individual, and of society, in a judicial determin
ation of guilt and punishments ... The use of deadly force is a
self defeating way of apprehending a suspect and so setting the
criminal justice mechanism in motion ... a majority of police depart
ments in this country have forbidden the use of deadly force against
nonviolent suspects." Tennessee v. Garner,471 U.S.1,9(1985). "[T]he
test of reasonableness under the Fourth Amendment ... requires care
ful attention to the facts and circumstances of each particular
case, including .the severity of the crime at issue, whether the
suspect poses an "immediate threat to the safety of the officers,
or others and whether he is actively ... attempting to evade arrest
by flight." Graham v. Conner,490 U.S.386,396(1989)[citing, Garner,471
U.S. @ 8-9]. The test for reasonableness is an objective one, without
reqard for whether a police officer acted in "good faith" or "malic
iously and sadistically for the very purpose of causing harm", id.
@ 397. However evidence of an officer's "ill-will toward the citizen"
is relevant in "assessing the credibility of an officer's account
of the circumstances that prompted the use of force", id. @ 399 n.12.
Deputy Azwell's shooting of Appellant to stop his car, was grossly dispropor
tionate to the need for self defense under §9.51(c) and USCA 4, which is shown
by his calculated decision to run in front of Appellant's already aimed and
moving car for a second or two, just long enoughi to. shoot at him and then
jump out of the way again before he got hit, a fabricated "threat" employed
to justify shooting the fleeing . Appellant who did not appear to be armed or
otherwise dangerous. This conclusion is supported by several other facts such
as Azwell's decision to continue vehicular pursuit of Appellant down the dead
end knowing the vehicle was trapped on the dead end and Azwell could have used
his patrol car to simply block the dead end at it's entry. Fraire,957 F2d @
1272; Moser,865 F.Supp. @ 251,255(suspect pusued in his car until trapped,
then shot by police, and suspect rammed police car with his own car to escape
and got away, held to state a USCA 4 claim). Note that all Azwell's shots were
above the horizontal center line of Appellant's vehicle and the front hood
and side window pillar and passenger window shots were all clearly aimed at
Appellant's person, successfully hittinq him in the chest. Deputy Azwell clearly
did not intend to just stop Appellant's car here, which he could have done
by shooting out Appellant's tires, but chose not to. Whiddon,supra.(Whiddon
was fleeing^ by scar from police service of a warrant, drove toward trooper who
shot out Whiddon's tire to stop the vehicle),. And this deputy committed perjury
in trial saying Appellant drove "directly" at him to cover up his excessive
use of force in shooting Appellant, proven by the front-view laser test photo
evidence, fabricating the threat to justify his sadistic and malicious shooting,
25
of Appellant at issue, and of CSI Wright in trial acting $n concert with Deputy
Azwell to cover up his use of excessive force to shoot Appellant by effectively
falsely testifying about, or at least suppressing the existence of, the "front-
view" laser test photo result which irrebutably shows-the; Deputy falsely testi
fying when he testified he only shot the Appellant because the Appellant was
driving directly at him. Appellant argues this is clear! evidence of "ill-will
toward the citizen" the Supreme Court said was relevant to incur 4th Amendment
liability. Graham,490 U.S. @ 399 n.12; Fraire,957 F2d @ 1276-77[citing,Tex.Penal
Code §9.51(c)]. Appellant argues the above demonstration negates the lawful
discharge essential element of the instant offense in this case. Brock,295
S.W.3d @ 52. Because Deputy Azwell's shooting of the Appellant was unconstitu
tional and illegal under the peculiar facts and circumstances of this case,
the instant aggravated threat upon a public servant "lawfully discharging"
a public duty conviction must be reversed as based on the opposite of a vital
fact within the State's burden of proof, requiring reversal of conviction and
rendition •of a judgement of acquittal. Jackson,443 U.S. @ 319; Standards of
Review in Texas,34 St. Mary's Law J.,159(2002); e.g., Swann,498 F.Supp.2d @ 863;
Estate of Stacks,5 F3d @ 232-25; Brock,295 S.W.3d @ 527"
6, In conclusion, under any or all of the above arguments and authorities,
there is legally insufficient evidence to convict the Appellant for intedtlonally
or knowingly threatening Deputy Azwell by the use or exhibition of a motor
vehicle against a public servant lawfully discharging a public duty, requiring
the instant Penal Code §22.02(a)(2)(b)(2)(B) conviction to be reversed and
a judgement of acquittal renderred. USCA 14; Jackson,443 U.S. @ 319.
B. False Testimony by Police, Suppressed Evidence by Police and
Prosecutors, Failure of Prosecutors to Correct the False
Testimony When it Appeared, in Violation of Due Process
J. Here, as in the previous subsection's argument hereinabove, the focus
is again on the facts showing intentionally or knowingly threatening Deputy
Azwell with imminent bodily injury by Appellant's driving his car directly
at ms- deputy elements of the offense. See infra., Part A. This issue turns on a
Texas Court of Appeals ability to consider previously undisclosed State suppres
sed "front-view" laser test result photographic evidence discussed hereinabove
in the Facts section.
a. First, the Supreme Court has long required all courts to recognize the
"inexpertly drawn" allegation from pro-se litigants that perjured testimony
was used by the State to convict and the State's "deliberate suppression by
those same authorities of evidence favorable to him." Pyle v. Kansas,317 U.S.
213,215-16(1942). Thus, when previously "undisclosed evidence demonstrates
that the prosecution's case includes perjured testimony and the prosecution
knew, or should have known, of the perjury ... is fundamentally unfair, and
[the conviction] must be set aside if there is any reasonable likelihood that
the false testimony could have effected the judgement of the jury." U.S. v.
Agurs,427 U.S.97,103(1976). Even if only the police know of the false testimony
and/or suppressed evidence, this knowledge will be imputed to state prosecutors.
Ex parte Adams,768 S.W.2d 281,291-92(Tex.Crim.App.1989)[citing, Giglio v. U.S.,
405 U.S.150,153-54(1972)]. It is enough that the prosecutors should have recog
nized the misleading evidence. Ex parte Castellano,863 S.W.2d 476,481,485 & n.10
26
»,
i
(Tex.Crim.App.1993)[citing, Duggan v. State,778 S.W.2d 465,468(Tex.Crim.App.
1999)]. It is irrelevant whether the State solicited the false evidence, since
thei crux of- the- 14th Amendment violation is "deliberate deception" by false
or ipEfrjured testimony. Tassin v. Cain,517 F3d 770,778(5th Cir.2003). Perjured
testimony must be proven by more that trial record contradictions, inconsist
encies or conflicts in'witness testimonies. Craig v. TDCJ-CID,2013 U.S. Dist.
LEXIS 124976 at *13(E.D.Tex.2013)[citing, Koch v. Puckett,907 F2d 514,531( 5th
Cir.1990)J. The perjured testimony must be material, and will be found material
unless a reviewing court is convinced beyond a reasonable doubt that the perjury
did not contribute to the conviction or the punishment. Castellano, 863 S.W.2d (§
485; Johnson v. State,169 S.W.3d 223,230 & nn.28,29(Tex.Crim.App.2005)(stating
the\harm standard: is the same as the "beyond a reasonable doubt" standard
of Chapman v. Cal.,386 U.S.18,24(1967)), The critical question to answer is,
if without the perjured testimony and altered evidence, was there sufficient
evidence to sustain a finding of guilt? If not the conviction will be reversed.
Castellano,863 S.W.2d @ 485-86; and see, Issac v. Cain,2013 U.S.Dist.LEXIS
123864 at *6(E.D.La.2012)[citing Johnson v. Dretke,442 F3d 901,911(5th Cir.
2006)[(asking absent the knowing presentation of false testimony, whether no
reasonable fact-finder would have found him guilty).
3» Ii is a seperate Due process violation when the State allows false testi
mony to go uncorrected when it appears. Tassin,517 F3d @ 779[citing, Giglio
v. U.S.,405 U.S.150,153(1972)(quoting, Napue v. I11.,360 U.S.264,269(1953))].
When the State capitolizes on it in jury arguments, 3 violation <# Giglio and
Napue is established, id.: accord, Vasquez v. State,67 S.W.3d 229,239 & nn.19-20
(Tex.Crim.App.2002)[citing, U.S. v. Bagley,473 U.S.667,678-79 & n.9(1985)];
Perkins v. State,meritsi?of;o.the
a:lleqatipns-rof-proese:-idehtifledrreve©sibi;e-i;errors:-in? rebuttal.,,: and by admitting
to the authenticity of Appellant's submitted "front-view" laser test photo
State's evidence compelling value for exoneration. Lewis v. State,402 S.W.3d 852,
855-56,865-66(Tex.App.-Amarillo 2012),pet.granted,2013 Tex.Crim.App.LEXIS 1526
(10-23-13)(state declined to respond to Rule 49.2 order, court granted relief
refmg "life w/o parole" sentence to "life"); Reeves,2004 Tex.App.LEXIS 6815
(in Rule 49.2 response State,admits to Double Jeopardy violation by Aggravated
Assault on Public Servant, and Aggravated Assault convictions, vacating latter),.
Given the structural nature of many of Appellant's arguments and authorities
on thev merits of his pro-se identified reversible errors as briefed throughout
herein, and the fact that the record supports Appellant's pro-se demonstration
of false testimony, suppressed evidence and knowing failure to correct same
when it appeared in trial, Due Process concerns and the interests of justice
should compel this Court to consider Appellant's previously suppressed or un
available to him •;front-view" laser test photo State's evidence under Sims
v. State,99 S.W.3d 600,601-04(Tex.Crim.App.2003),;::.:". Sotelo,913 S,W.2d @ SOS^IO,
cf: Fury,186 S.W.3d @ 74 & n.5(Brady claim of withheld photo evidence was irejf
eeted, ibut holding previously "undisclosed Brady material photo evidence must
support Appellant's trial and appeal arguments, must be material, and must
demonstrate the phpto at issue would probably cause a different result in an
other trial, to be considered in a direct appeal context); Perkins,902 S.W.2d
@ 102, supp.opin., 905 S.W.2d § 452-53(claim of perjured expert witness testi
mony about a scientific study which appellant attached to his motion for re
hearing and argued for first time, was rejected for, first, not being part of
the appellate record, and second, for finding no support in the appellate record
otherwise; on supp.opin. court held it could take judicial notice of the attach
ed^ study because under Rochelle,supra'. it had discretion to consider new matter
raised for the first time in a motion for rehearing, for Due Process concerns
or in the interests of justice, but would not do so here based on weakness
of study as evidence and argument in support). After all, it is the State's
duty and obligation under Federal Due Process, when confronted with false or
perjorious State witness trial testimony and misleading evidence, to correct
the false and misleading testimony and evidence at that time. Tassin,517 F3d
@ 778-79; Vasquez,67 S.W.3d @ 239 & nn.19-20; Adams,768 S.W.2d @ 291. Once the
State is so ordered here, arguably Due Process would require the State to admit
Appellant's submitted, "front-view" laser test photo evidence is authentic,
their contents clearly show reasonable doubt exists as to Appellant's driving
"directly" at Deputy Azwell when shooting Appellant because the front hood
shot clearly came from well to the side of Appellant's vehicle and not from
the front as Deputy Azwell falsely testified to ultimately resulting in a rever
sal and acquittal on the count I aggravated threat of a public servant charge
and reversal and remand on counts £,3 S 4 for a new trial with a jury properly
informed on the lack of credibility of Deputy Azwell and CSI wright.
Should the State continue to take an adversexposition/ Appellant requests
the Court abate the appeal and remand for findings of fact on the authenticity
of the "frontview" laser test photos, and the impact of it's contents upon
the State's case in trial, after an evidentiary hearing with appointed defense
counsel to assist Appellant, under the heretofore cited substantive law, and
Tex.R.App.P.44.4, LaPointe v. State,225 S.W.3d 513,521-23 & n.9(Tex.Crim.App.
2007)' Spence v. State,758 S.W.2d 597,599-600(Tex.Crim.App.1988) & Michaelwicz
v. State, 186 S.W.3d 601,613-16(Tex.App.-Austin 2006rehg ovrJd,pet refd, cites emitted),
with ^return to the-iBe&umonto .Court- of; /Appealso for judgements -on the pro-se
identifiedreversible constitutional errors.
27A
*
5", The Beaumont Court of Appeals abused its discretion by only holding Deputy
Azwell'stestimony supported finding Appellant "tried to run him over" while con
tinuing "to evade arrest" justifying the deputy having "fired several shots
at Martin's car when Martin drove directly toward him" and Martin's "driving
directly at" the deputy "is not contradicted" by the record, see Appx.38-39,
5/21/14 Mem.Pp.,6-7, without also having construed the submitted "front-view"
bullet trajectory laser test photo evidence results proving the deputy's testi
mony that he was in front of Appellant's car driving directly at the deputy when
the deputy shot into the front hood, was irrebutably false and perjorious testi
mony. Appx.31-32(suppressed "front-view" laser test photo result, and State's
Exhibit "side view" laser test photo result). Had the Court construed this
"front-view" laser test evidence and the related arguments, it could not have
concluded this specific testimony was not contradicted. See infra.,Facts,HU3-8.
(o, Deputy Azwell's fatal testimony is that he was "directly" in front of
Appellant's vehicle driving "straight" at him when he shot into the front hood.
As the "front-view" laser test photo shows, that shot was obviously and irrebut
ably fired from the side of Appellant's car, just like the other two shots.
This photo evidence rises far above mere trial record contradictions, incon
sistencies or conflicts in witness testimonies. It demonstrates by the State's
own expert witness laser test photo results that Deputy Azwell falsely and
perjoriously testified he was right in front of Appellant's car while Appellant
was driving "directly" at him to run him over, because the front hood shot
laser beam is coming out of the front hood's bullet hole at what is conserva
tively an. 80^-85° angle to the side of the car. This demonstrates materiality.
Comparevf infra.,Part A.1,3, with, Castellano,863 S.W.2d @ 485.
~7, In trial it was undisputed that shots 2 and 3 came from the side of Appel
lant's car, one of which hit him in the chest leading to his surrender. The
State's bullet trajectory expert CSI Wright testified it was the first shot
that went through the front hood, explaining 'ttte trajectory after going through
the hood, it's vertical trajectory before going through the hood, but dodged
the issue of it's horizontal trajectory before going throught the hood. At this
exact point, trial counsel "passed" this witness, instead of introducing the
"front-view" laser test photo results into evidence and asking CSI Wright why
he was dodging the issue of the "front-view" laser test photo result showing
the deputy was firing into the front hood from the side of Appellant's car.
Appx.1-5(Deputy Azwell and CSI Wright testimonies). The State has admitted
trial counsel's main defense against the aggravated threat of a public servant
charge was Azwell fabricated his ..driving1;:"directly" at him testimony to cover
up his excessive force in shooting the Appellant from the side of the car.
Compare, 2/10/14 filed State's Brief,8-9, with, Appx.7-9 - Defense's Closing
Jury Arguments. Thus the front-view laser test photo result supports Appellant's
trial arguments with independant record support. Fury,186 S.W.3d @ 74 & n.5;
Perkins,905 S.W.2d @ 453. Trial counsel's failure to investigate or argue the
front-view f^ser test photo results to exonerate Appellant in this context
was ineffective assistance of counsel, Draughton v. Dretke,427 F3d 286,296(5th
Cir.2008), and is so outrageous as to demonstrate no possible sound trial strat
egy could exist for this deficient conduct allowing an ineffective assisian^t of
counsel on this direct appeal record. Garcia v. State,57 S.W.3d 436,440(Tex.Crim
App.2001). Since Appellant could not have been driving directly at Deputy Azwell
when he shot at Appellant all three times from the side of his car, and still
"threaten" the deputy by c&fyiying "directly" at the deputy, the evidence is
legally insufficient. See infra.,Part A.l,3(arguing innocence and citing cases).
28
Agurs,427 U.S. @ 107,109(asking if "the evidence is so clearly supportive of
of a claim of innocence" and if the evidence "is highly probative of innocence")
Castellano,863 S.W.2d @ 485-86(asking if without the perjured testimony and
altered evidence, there is insufficient evidence to sustain a finding of guilty)
9, The State knew of the existence of the "front-view" laser test results,
as it is, State's evidence, and a prosecutor had to select from all the laser
test photo evidence to only wind up with "side-view" laser test results in
the State's exhibits filed in trial. Clearly, these front and side view photos
contain Appellant's car being tested by police using a laser beam, the only
difference being that .the front-view laser photos have a clear exculpatory
value which the jury was prevented from being shown in this case, and the side-
view ( laser photos have a clear inculpatory value when the jury is presented
them'; without also being presented with the front-view laser test photo results
for context. These photos show the same laser beam shooting out of Appellant's
front hood bullet hole. The problem is the side view of the laser beam, out
of context, appear to show a. bullet'- is shot from the front of the vehicle.
However,'-/view;. the side view and the front view together, and it becomes clear
that if that Bullet, was, shot at xANY-'angle: to the vehicle, it was shot from
an 80°-85° angle to the side of Appellant's car. Viewed in context of Deputy
Azwellls false testimony that Appellant was driving directly at him when he
shot into the front hood, and CSI Wright's evasive testimony on whether his
laser test showed Deputy Azwell was in front of Appellant's car hence support
ing the deputy's claim Appellant was driving directly at him when he fired
at Appellant, or whether his laser test showed Deputy Azwell was on the side
of Appellant's car hence showing the deputy falsely testified in trial to es
tablish the essential fact to the prosecution's case that Appellant threatened
the deputy by driving "directly" at him, and the conclusion is inescapable
that the prosecution, Deputy Azwell and CSI Wright ALL "knew" about the false
testimony of Deputy Azwell, suppressed the existence of the "front-view" laser
test photos from the jury, and then failed to correct this false testimony
and suppressed evidence when it appeared in triai/.that would [show it. Hence, the
knowing presentation of false evidence and suppressed evidence is shown,
since the police themselves falsely testified and suppressed material evidence.
Castellano,863 S.W.2d @ 481,485 & n.10; Adams,768 S.W.2d @ 291-92[citing, Giglio
405 U.S. @ 153054].
id. All this jury argument is capitalizing
upon Azwell's underlying false testimony that Appellant drove directly at him,
dressed up by further perjury about how the deputy felt which is irrelevant,
establishing the Due Process violations of failing to correct false testimony
when it appears and relying upon it in jury arguments. Tassin,517 F3d @ 779[cit
ing, Giglio, 405 U.S. @ 153. & Napue,360 U.S. @ 269]. Though the State also relied
minimally upon the testiweqj of Casey Meadows "who saw it from her home", i.e.,
"the danger that she thought the officer was in", her actual trial testimony is
too equivocal to rely upon exclusively to prove the Appellant was driving his
car directly at Azwell. Appx.5-6, R.R.,v.6,22-29. First, she was in her garage
29
which is no more than 10-15 feet away from her house. R.R..,v.lO - State's Ex.215
("Lieca Scan" drawing of driveway, garage and house). Second, Meadows testi
fied she '*[:pisjnictaed" and "ran from the garage to the house". Although there
is no timeline established specifically, it could not have taken her longer
then mere seconds to run this distance. Appx.5 - R.R.,v.9,22-23. Third, Meadows
testified sheewas still outside when she saw Appellant's "car and two police
following" coming "down the street", then sa® "a policemsrat -standing in my
yard, and [Appellant] was driving toward the policemen:", id. @ 23. Fourth, the
incar CD video evidence shows Deputy Azwell parked his patrol car in Meadows
driveway at the street end just before getting out of his car, yet l.'she L said
she could not see it "because le was running towards the house", id. @ 24-
25. Fifth, Meadows then changed her testimony to the police car had stopped
in front of her house before the driveway,when she saw the deputy standing
in her yard. id. @ 25. Sixth, Meadows testified she didn't see the deputy "get
out of the car" but did see him standing in the yard. Appx.6 - R.R.,v.9,pg.25.
This evidence merely shows a pasrucdked woman, running a very short distaince
in seconds, who momentraily saw the Appellant driving "toward" Deputy Azwell
during a glance behind her - Ms. Meadows did not see Azwell getting out of
patrol car a few seconds before, and didn't see him shooting the Appellant
a second or two later. Indeed, she doesn't even see Azwell's patrol car which
is parked right beside him on Meadows' driveway, shown by the CD in car video to
be there, and then changes her mind that it is parked in the street. At best,
Meadows testimony corroborates Azwell's claim Appellant was driving "directly"
at him, by Meadows claim Appellant was momentarily seen by her to be driving
"toward" Azwell. But this testimony has no bearing on whether Azwell shot the
Appellant from in front of, or beside, Appellant's car'', since Meadows
.admitted she could not see that precise event. Therefore, Meadows' "driving
toward" testimony is so ambiguous, that even the State could:not rely upon
it in closing argument, instead arguing she "saw it from her-home" and "she
witnessed the danger that she thought the officer was in". Appx.,7 - R.R.,y.9,
pgs.82-83,114-16. Therefore, Meadows' testimony is irrelevant to thef^ ultimate
factual issue to be decided by this Court. Hencei,!' the State capitpiized oh
Deputy Azwell's falsified or perjured testimony during jury argument;:,estab
lishing a Due Process violation for the State's failure to correct this* false
or perjured testimony during trial. Tassin,517 F3d @ 779[citing, Giglio,supra.
& Napue,supra.].
Conclusions.
1.- The trial and appeals courts abused their discretions by failing to take
into consideration the facts that a second or two before Appellant's car passed
between Deputy Azwell's and the resident's vehtctes parked on the driveway,
Deputy Azwell ran into that space and right in front of Appellant for a second
or two long enough to fire his weapon and jump out of the way again. See infra.
Facts 3,5. This distinction alone establishes legally insufficient evidence
Appellant "threatened" Deputy Azwell. See infra., Arguments A.l-3. ".T.R.A.P.47.1.
2. The evidence is also legally insufficient to show Deputy Azwell was in
the terms., of the statute "lawfully discharging" his duty to arrest Appellant,
since the "front-view" laser test photo result evidence shows the deputy used
'unconstitutional excessive force to arrest him contrary to USCA 4 and Tex.Penal
Code §9.51(c), establishing the opposite of the vital fact of lawful arrest
required by the statute hence insufficient evidence. See infra., Arguments,
4-5. Tex.R.App.P.47,. 1/49
30
♦;
3. The "threaten" and/or "lawfully discharging" elements of the offense sin
this conviction were entirely and only supported by false testimony, suppressed
material evidence and the State's knowing failure to correct false testimony
and suppressed evidence when it appeared in trial, in violation of Due Process.
7. VIOLATION OF APPELLANT'S RIGHTS TO CHOICE OF COUNSEL AND CONFLICT-
FREE COUNSEL, UNDER USCA 6 AND TEXAS CONSTITUTIONAL ART.I, SECTION.10
Facts
Trial counsel presented a motion for new trial, arguing ineffective assist
ance of previous trial counsel Mr. Ward due to his premature withdrawel from
from the case and Mr. Boyd's substitution into the case. See R.R.,v.l4,l.
The same facts also establish the trial court violated Appellant's right to
assistantstotfr.counsiei,. Ward was paid in advance by Appellant's elderly mother,
when plea negotiations foundered Mr. Ward refused to defend Appellant in trial,
filing a motion to withdraw, which the trial court denied. C.R.226-31. One
4/27/12 payment to Dick DeGuerin was made, two letters on DeGuerin letterhead
were thereafter issued for representation which "does not include the fee for
going to trial" and this fee was "nonrefundable". R.R.,v.l2, Defense Exhibits
1-4. Appellant did not find out that Ward's representation was conditional,
until after he'd rejected plea offers of 40 years and 35 years, only learning
of tnis "conditional representation during Ward's motion to withdraw hearing.
R;R./v.lSypgs.30-31,38. Trial counsel Mr. Boyd argued Dick DeGuerin ' and
Mr. Ward --'took Appellant's $55,000.00 in bad faith, refusing to go to trial
after- Appellant unknowingly refused two plea offers based on the purported
letter contract Appellant never knew about until it was too late. R.R.,v.13,pgs.
26^27. And see, Appx.14 - Sept.20,2012 MTW Hearing,R.R.5. Trial counsel Mr.
Boyd's first appearance in this case was during this MTW hearing, his purpose
being to represent Appellant against Mr. Ward, which succeeded when the trial
court denied Mr. Ward's motion to withdraw. See Appx.15-16 - Sept.20, 2012 MTW
Hearing,6-7. When confronted with this dispute, the trial court advised Ap^-
pellantv'.;!-Here's the^deal. Yoticrhave-to:paysyour-attorneyiC^
ey;is not:going to want^c^do-^agood job for you." See Appx. 14 --Sept.20,2012 MTW
Hearing,5. One week/ later Mr. Boyd and Mr. Ward appeared in the trial court
and agreed to let Mr. Boyd substitute for Mr. Ward, during which the State
withdrew it's plea offer of 35 yrs. See Appx.23-27 - Sept.27,2012 MTS Hearing,
4-8. In the new trial, hearing Appellant explained that after the: trial judge
initial denial of the MNT, the prosecutor "Rob" "went off on me", Mr. Ward
told Appellant he was "not happy" with him but was "stuck" with going to trial,
as Appellant wept from the stand that he feared he, was going to get railroaded
by ", -.-•' "Ro6" and Mr. Ward, especially after the trial judge's advice that Ward
was "not going to do a good job for" Appellant since Appellant didn't have
any more money to pay Ward, factual issues that were not objected to by the
State. R.R.,v.14,pgs.32-33. Appellant emphasized that his elderly mother had
hired Dick DeGuerin, not Mr. Ward, id.,pgs.47-48, and after spending the large
amount for them of $55,000.00 they didn't "have no more money" to pay lawyers,
id.,30. Boyd argued Ward withdrew prematurely because the trial court's border
to Ward to defend Appellant, did not mean a plea would not still be worked
out, id., highlighted by Martin's merely contesting Mr. Ward's withdrawel effort
alone resulted in Appellant obtaining a 35 yr. plea offer, better than Ward's
31
>\
V
>
40 yr. plea offer. Mr. Boyd emphasized the trial judge's comment to Appellant
improperly influenced the plea proceedings and Appellant's ability to proceed
with chosen counsel. R.R.,v.14,pgs.26-27,66-71.
A. The Right to Choice of Counsel
The Sixth Amendment confers a right to retain the attorney of one's choice.
Powell v. Alabama,286 U.S.45,53(1932). The right to choose counsel can be viol
ated even if erroneously substituted counsel is effective because the choice
versus the quality of representation are distinct rights. U.S.. v. Gonzalez-
Lopez,548 U.S.140,147-48(2006). While this right is not absolute under USCA.6,
giving trial courts the right to balance counsel of choice against the interests
of judicial integrity and efficiency, < Wheat,486 U.S. @ 162, this right IS abso
lute under Tex.Const.Art.I,§10. Jones v. State,926 S.W.2d 386,390-91 & nn.21,22
(Tex.App.-Ft. Worth 1996)[citing, Holloway v. State,780 S.W.2d 787(Tex.Crim.App.
1989) & Clinton v. Stearns,780 S.W.2d 216(Tex.Crim.App.1989)].
Appellant's family paid Dick DeGuerin's law firm $55,000.00 via associate
counsel. Mr. Ward to represent Appellant, but only Mr. Ward represented him
during pre-trial hearings alone. Whetfplea negotiations failed, Mr. Ward demand
ed more money to go to trial, which Appellant's family did not have. However,
Appellant did not know of this contract and it's terms until after he'd turned
down tuuo plea offers, only finding out about the contract's terms during Ward's
motion to withdraw. When the trial judge advised Appellant to pay his lawyer
Mr. Ward "or he tsiould not do a good; job for you", this improperly interfered,
with the plea bargain process, and Appellant's choice of counsel Mr. Ward up
to that point. Remember, he came to the trial court with another hired lawyer
Mr; Boyd to fight against Mr. Ward's withdrawing from the.case. The trial judge
statement as such intimidated and coerced Appellant to dismiss Mr.Ward after
the motion to withdraw hearing, which was done a we&k later in the motion to
substitute hearing. The trial judge improperly interfered with Appellant's
choice of Mr. Ward as counsel when giving the improper advice to him to pay
Mr. Ward or else! Therefore, Appellant's Federal and State rights to choice
of counsel were violated by the trial court authorizing a new trial;.
B. The Right to Conflict-Free Counsel
See infra., Issue No.1,C,1-3. The Sixth Amendment confers a rightto the
effective assistance of conflict free counsel. An actual conflict exists whend
(£.€€